EXHIBIT 10.25
EMPLOYMENT AND NON-COMPETITION AGREEMENT
THIS EMPLOYMENT AGREEMENT AND NON-COMPETITION AGREEMENT ("Agreement")
is made and entered into as of the 1st day of January, 2000, by and between
PRIMIS, INC., a Georgia corporation (the "Company"), and Xxxxxxx Xxxxx Xxxxx, an
individual ("Employee").
RECITAL:
Employee desires to be employed by the Company and the Company desires
to employ Employee on the terms and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is agreed by and between the
parties hereto as follows:
1. EMPLOYMENT. The Company hereby employs Employee and Employee
accepts employment by the Company and agrees to serve the Company, upon the
terms and conditions hereinafter set forth.
2. Term. Employee's employment shall be for a term commencing on the
date hereof and ending on August 19, 1999, 2003 unless Employee's employment
terminates prior thereto as provided in Section 6 (the "Term"). Thereafter, this
Agreement shall continue in full force and effect, except that Section 6 shall
no longer be applicable, and either party hereto may terminate Employee's
employment hereunder upon ninety (90) days prior written notice to the other.
3. DUTIES. Employee shall be employed by the Company as Vice President
- Sales. So long as Employee is employed hereunder, Employee agrees to devote
his full business time and energy to the business and affairs of the Company, to
perform his duties hereunder to the best of his ability and at a level of
competency consistent with the position occupied, to act on all matters in a
manner Employee reasonably believes to be in and not opposed to the best
interests of the Company, to use his best efforts, skill and ability to promote
the profitable growth of the Company, and to perform such other duties as may be
assigned to him by the Company's Chief Executive Officer, Chairman or by the
Company's Board of Directors ("Board") from time to time.
4. COMPENSATION AND BENEFITS. For all services rendered by Employee,
the Company shall pay compensation and provide benefits to Employee as follows:
A. SALARY. The Company shall pay Employee an annual salary
("Salary") of ONE HUNDRED AND TWENTY THOUSAND DOLLARS ($120,000), payable not
less frequently than monthly. At least once every twelve (12) months the Board
shall review Employee's Salary and make such adjustments to the Salary as it
reasonably deems appropriate, provided that the Salary shall not be reduced.
B. INCENTIVE CASH BONUS. Bonus plan at Attachment 1.
C. BUSINESS EXPENSES. The Company shall reimburse Employee for
his reasonable direct out-of-pocket ordinary and necessary expenses,
including trade association dues, if any, incurred by Employee in the
performance of his services hereunder and for which Employee properly accounts
in accordance with the Company's regulations and procedures in effect from time
to time.
D. ADDITIONAL BENEFITS. Employee shall be entitled to
participate on the same terms and conditions as employees similarly situated in
any and all employee retirement, medical, life and disability insurance,
vacation and other benefits plans and perquisites as may be established and in
effect from time to time and made available to employees of the Company.
5. WITHHOLDING. The Company shall be authorized to deduct and
withhold from Employee's compensation such sums as are required by law to be
deducted and withheld.
6. EVENTS CAUSING TERMINATION OF EMPLOYMENT. Employee's employment
with the Company shall terminate prior to the expiration of the Term, without
further obligation on the part of the Company, except as provided in this
Agreement, only upon the occurrence of any of the following events:
A. The voluntary resignation of Employee;
B. The death of Employee;
C. The discharge of Employee for misconduct, dishonesty or
fraud on Employee's part in connection with the performance of any duties
hereunder;
D. The discharge of Employee for a material breach by Employee of
any of the terms of Sections 8, 9 or 11 of this Agreement;
E. The discharge of Employee upon a determination by the Board,
acting in good faith and with reasonable justification, that Employee's
performance has been unsatisfactory, after first having given written notice to
the Employee that the Employee's performance has been unsatisfactory (which
notice shall set forth in reasonable detail the nature of the unsatisfactory
performance), and Employee having failed to cure such unsatisfactory performance
within thirty (30) days thereafter to the reasonable satisfaction of the
Company;
F. The discharge of Employee upon a determination that Employee
has been unable, for any continuous period of at least three (3) months, or for
shorter periods aggregating three (3) months during any 12-month period, to
perform his duties hereunder by reason of injury, illness or other physical or
mental disability (such determination to be made by agreement between the
Company and Employee, or, in the event the Company and Employee are unable to
agree on such determination, and upon written notice thereof by either party to
the other, then each of the Company and Employee shall, within ten (10) days
after such notice is given, select a qualified and licensed physician, and
such physicians together shall select a third licensed and qualified physician
who will
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make such determination within thirty (30) days after his or his appointment
and whose determination shall be binding upon all parties hereto); or
G. The discharge of Employee for conviction of Employee of a
crime involving moral turpitude.
7. PAYMENTS TO EMPLOYEE UPON TERMINATION OF EMPLOYMENT.
A. Subject to the provisions of Sections 7(B) and 7(C) below,
in the event Employee's employment with the Company shall terminate during the
Term for any of the reasons set forth in Section 6, or thereafter pursuant to
Section 2: [i] Employee's Salary shall be prorated and paid through the date of
termination; and [ii] all unvested options to purchase common stock of the
Company shall cease and terminate as of the date of termination.
B. In the event of Employee's termination pursuant to Section 6(B)
or 6(F) hereof, Employee shall be entitled to receive, at such time as it would
otherwise be payable, any Incentive Cash Bonus which would have been payable,
based upon the Company's performance over the full fiscal year, prorated for
that portion of the fiscal year during which the Employee was employed by the
Company.
C. In the event of Employee's termination pursuant to
Section 6(F), the Company agrees to continue to pay Employee's full Salary
during such period of disability, said payments to continue for a maximum of six
(6) months. Thereafter, Employee shall be paid disability benefits pursuant to
the disability insurance, if any, established by the Company and in which
Employee participates pursuant to Section 4(D) of this Agreement.
8. COVENANTS NOT TO SOLICIT OR COMPETE.
A. NON-COMPETITION. Employee recognizes one of the inducements
for the Company to enter into this agreement of employment is the understanding
that there will be no competition or interference, directly or indirectly, for a
period of time after the termination of his employment with the Company.
Employee further recognizes and acknowledges that, in consideration of the scope
of the business of the Company and the nature of the services Employee provides
to the Company, and in order to protect the Company's legitimate interests,
Employee's covenant not to compete must include each of the areas where the
Company currently does business, which areas include Alabama, Arizona,
California, District of Columbia, Florida, Georgia, Maryland, Michigan, North
Carolina, Nevada, Ohio, Oregon, Texas, Virginia and Washington (collectively,
the "Territory"), to the extent Employee hereafter actively performs, supervises
or assists in the Company's business in such areas or has material contact with
customers of the Company within such areas. In consideration of the covenants
herein, Employee agrees that for the period Employee is employed by the Company
(whether during the Term or after the Term ends) and for a one-year period
immediately following the termination of his employment with the Company for any
reason whatsoever, Employee shall not, within the Territory, in any manner,
directly or indirectly or by assisting others, engage in any business which is
the same or essentially the same as the business of the Company, such business
being the business of real estate information services, including
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commercial and residential real estate appraisals, title exams, flood
certifications and credit reports, as an manager or as a supervisor,
administrator, executive, senior or management level employee, owner,
proprietor, shareholder or consultant; provided that Employee shall not be
restricted from owning less than 3% of the outstanding shares of a company
whose shares are publicly traded.
B. NON-SOLICITATION. Employee agrees that for the period
Employee is employed by the Company (whether during the Term or after the Term
ends) and for a one-year period immediately following the termination of his
employment with the Company for any reason whatsoever, Employee shall not (other
than in the regular course of the Company's business), within the Territory,
solicit, directly or indirectly, business of the type then being performed
therein by the Company from any person, partnership, corporation or other entity
which [a] is a customer of the Company within the Territory at the time
Employee's employment with the Company terminates, including an actively-sought
prospective customer, or [b] was such a customer within the two-year period
immediately prior thereto, for the purposes of providing products or services
that are competitive with those provided by the Company, provided that in the
case of either [a] or [b], Employee had material contact with such customer
during and as a part or result of his employment with the Company.
9. NON-INDUCEMENT AND NON-DISCLOSURE.
A. NON-INDUCEMENT. Employee agrees that for the period Employee
is employed by the Company (whether during the Term or after the Term ends) and
for a two-year period immediately following the termination of his employment
with the Company for any reason whatsoever, Employee shall not directly or
indirectly, individually or on behalf of persons not parties to this Agreement,
aid or endeavor to solicit or induce any of the Company's employees to leave
their employment with the Company in order to accept employment with Employee or
another person, partnership, corporation or other entity.
B. NON-DISCLOSURE. At no time shall Employee divulge, furnish
or make accessible to anyone (other than in the regular course of the Company's
business) any knowledge or information with respect to confidential information
or data of the Company, or with respect to any confidential information or data
of any of the customers of the Company, or with respect to any other
confidential aspect of the business or products or services of the Company or
its customers.
10. INJUNCTIVE RELIEF FOR BREACH: ENFORCEABILITY. Employee agrees
that Company may not be adequately compensated by damages for a breach by
Employee of any of the covenants contained in Sections 8 and 9, and that, in
addition to all other remedies, the Company shall be entitled to injunctive
relief and specific performance. In such event, the periods of time referred to
in Sections 8 and 9 shall be deemed extended for a period equal to the
respective period during which Employee is in breach thereof, in order to
provide for injunctive relief and specific performance for a period equal to the
full term thereof. The covenants contained in Sections 8 and 9 shall be
construed as separate covenants, and if any court shall finally determine that
the restraints provided for in any such covenants are too broad as to the
geographic area, activity or time covered, said area, activity or time covered
may be reduced to whatever extent the court deems reasonable and
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such covenants shall be enforced as to such reduced area, activity or time and
Employee expressly agrees that this Agreement, as so amended, shall be valid and
binding.
11. PROPRIETARY RIGHTS.
A. RECOGNITION OF COMPANY'S RIGHTS; NONDISCLOSURE. At all times
during the term of his employment and thereafter, Employee will hold in
strictest confidence and will not disclose, use, lecture upon or publish any of
the Company's Proprietary Information (defined below), except as such
disclosure, use or publication may be required in connection with his work for
the Company, or unless the Chief Executive Officer or the Board of Directors of
the Company expressly authorizes such in writing. Employee shall and hereby does
assign to the Company any rights Employee may have or acquire in such
Proprietary Information and recognizes that all Proprietary Information shall be
the sole property of the Company and its assigns and that the Company and its
assigns shall be the sole owner of all patent rights, copyrights, trade secret
rights and all other rights throughout the world (collectively, "Proprietary
Rights") in connection therewith. The term "Proprietary Information" shall mean
trade secrets, confidential knowledge, data or any other proprietary information
of the Company which the Company treats as confidential with respect to the
general public. By way of illustration but not limitation, "Proprietary
Information" includes (a) inventions, trade secrets, ideas, processes, formulas,
data, programs, other words of authorship, know-how, improvements, discoveries,
developments, designs and techniques relating to the business or proposed
products of the Company and which were learned or discovered by Employee during
the term of his employment with the Company (hereinafter collectively referred
to as "Inventions"); and (b) information regarding plans for research,
development, new products and services, marketing and selling, business plans,
budgets and unpublished financial statements, licenses, prices and costs,
suppliers and customers which were learned or discovered by his during the term
of his with the Company, and information regarding the skills and compensation
of other employees of the Company. For purposes of this Agreement, the term
"Proprietary Information" shall not include information that Employee can show
by competent proof (i) was known to Employee prior to disclosure by the Company;
(ii) was generally known to the public at the time Company disclosed the
information to Employee; (iii) became generally known to the public after
disclosure by the Company through no act or omission of Employee; or (iv) was
disclosed to Employee by a third party having a bona fide right both to possess
the information and to disclose it to Employee.
B. THIRD PARTY INFORMATION. Employee understands, in addition,
that the Company may from time to time receive from third parties confidential
or proprietary information ("Third Party Information") subject to a duty of the
Company's part to maintain the confidentiality of such information and to use it
only for certain limited purposes. During the term of his employment and
thereafter, Employee will hold Third Party Information in the strictest
confidence and will not disclose to anyone (other than Company personnel who
need to know such information in connection with their work for the Company) or
use, except in connection with his work for the Company, Third Party Information
unless expressly authorized by the Chairman or Chief Executive Officer of the
Company in writing.
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C. ASSIGNMENT OF INVENTIONS.
[1] Employee shall and hereby does assign to the Company all
his right, title and interest in and to any and all Inventions (and all
Proprietary Rights with respect thereto) whether or not patentable or
registrable under copyright or similar statutes that were made or conceived or
reduced to practice or learned by his, either alone or jointly with others,
during the period of his employment with the Company.
[2] Employee shall and hereby does acknowledge that
all original works of authorship which are made by his (solely or jointly with
others) during the term of his employment with the Company and that are within
the scope of his employment and which are protectable by copyright are "works
made for hire," as that term is defined in the United States Copyright Act (17
U.S.C., Section 1201). Inventions assigned to or as directed by the Company by
this Section 11.C are hereinafter referred to as "Company Inventions."
D. ENFORCEMENT OF PROPRIETARY RIGHTS. Employee will assist the
Company in every proper way to obtain and from time to time enforce United
States and foreign Proprietary Rights relating to Company Inventions in any and
all countries. To that end Employee will execute, verify and deliver such
documents and perform such other acts (including appearances as a witness) as
the Company may reasonably request for use in applying for, obtaining,
perfecting, evidencing, sustaining and enforcing such Proprietary Rights and the
assignment thereof. In addition, Employee will execute, verify and deliver
assignments of such Proprietary Rights to the Company or its designee.
Employee's obligation to assist the Company with respect to Proprietary Rights
relating to such Company Inventions in any and all countries shall continue
beyond the termination of Employee's employment, but the Company shall
compensate Employee at a reasonable rate after Employee's termination for the
time actually spent by Employee at the Company's request on such assistance. In
the event the Company is unable for any reason, after reasonable effort, to
secure Employee's signature on any document needed in connection with the
actions specified in the preceding, Employee hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents as Employee's
agent and attorney in fact, to act for and in Employee's behalf to execute,
verify and file any such documents and to do all other lawfully permitted acts
to further the purposes of the preceding paragraph thereon with the same legal
force and effect as if executed by Employee. Employee hereby waives and
quitclaims to the Company any and all claims, of any nature whatsoever, which
Employee now or may hereafter have for infringement of any Proprietary Rights
assigned hereunder to the Company.
E. PRIOR INVENTIONS. Inventions, if any, patented or unpatented,
which Employee made prior to the commencement of employment with the Company are
excluded from the scope of this Agreement.
F. RETURN OF COMPANY DOCUMENTS. When Employee leaves the employ
of the Company, Employee will deliver to the Company all drawings, notes,
memoranda, specifications, devices, formulas, and documents, together with all
copies thereof, and any other material containing or disclosing any Company
Invention, Third Party Information or Proprietary Information of the Company.
Employee further agrees that any property situated on the Company's premises and
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owned by the Company, including disks and other storage media, filing cabinets
or other work areas, is subject to inspection by Company personnel at any time
with or without notice.
G. LEGAL AND EQUITABLE REMEDIES. Because Employee's services
are personal and unique and because Employee may have access to and become
acquainted with the Proprietary Information of the Company, the Company shall
have the right to enforce this Section 11 of the Agreement and any of its
provisions by injunctions, specific performance or other equitable relief,
without bond, without prejudice to any other rights and remedies that the
Company may have for a breach of this Agreement.
12. NOTICES. All notices and other communications hereunder shall be
in writing and shall be given or made by hand delivery, or by certified or
registered mail, return receipt requested, postage prepaid, or by telegram, as
follows, or to such other person or address as shall be hereafter designated by
notice given in accordance with this Section:
A. If to the Company: Primis, Inc.
Attn: Xxxxx Xxxxxxx
Suite 320
11475 Xxxxx Xxxx Xxx
Xxxxxxxxxx, Xxxxxxx 00000
With a copy to: Primis, Inc.
00000 Xxxxx Xxxx Xxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Chief Legal Officer
B. If to Employee: ________________________________
________________________________
________________________________
Any notice or other communication hereunder shall be deemed to have been duly
given or made if made by hand, when delivered against receipt therefor or when
attempted delivery shall be rejected, as the case may be, if made by letter,
upon deposit thereof in the mail, postage prepaid, registered or certified, with
return receipt requested, and if made by telegram, facsimile or reputable
overnight courier when sent. Notwithstanding the foregoing, any notice or other
communication hereunder which is actually received by a party hereto shall be
deemed to have been duly given or made to such party.
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13. MISCELLANEOUS.
A. ASSIGNMENT. This is a contract for personal services by
Employee and may not be assigned by Employee. This Agreement shall inure to the
benefit of and be binding upon the Company and its successors and assigns.
B. WAIVER OF BREACH. Failure or delay by either party to insist
upon compliance with any provision hereof shall not operate as, and is not to be
construed as, a waiver or amendment of such provision. The waiver by either
party of a breach of any provision of this Agreement by the other shall not
operate or be construed as a waiver of any subsequent breach, whether occurring
under similar or dissimilar circumstances.
C. ENTIRE AGREEMENT: CANCELLATION OF PRIOR AGREEMENTS. This
Agreement contains the entire agreement of the parties with respect to the
subject matter hereof. It may not be changed orally, but only by an amendment in
writing signed by the parties hereto. All prior agreements or understandings
concerning Employee's employment by the Company are hereby canceled and
superseded by this Agreement.
D. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
the remainder of this Agreement.
E. HEADINGS. The headings contained in this Agreement are for
convenience only and shall not be deemed a part of this Agreement in construing
or interpreting the provisions hereof.
F. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia. In connection
with the enforcement of this Agreement, the parties consent to jurisdiction in
the courts of Georgia. The prevailing party in any action to enforce this
Agreement shall be entitled to attorneys' fees from the non-prevailing party.
G. REMEDIES. In accordance with O.C.G.A. ss. 9-9-2(c)(9), as
evidenced by the parties affixing their initials hereon next to this Section
14.G., any controversy arising out of, or relating to, this Agreement or any
modification or extension of this Agreement, including any claim for damages,
recission, specific performance or other legal or equitable relief, shall be
settled by arbitration in the City of Atlanta, State of Georgia, in accordance
with the rules then obtaining of the American Arbitration Association. The
determination of the arbitrator when made shall be binding upon all parties
bound by the terms of this Agreement. Judgment upon the award rendered by the
arbitrator may be entered in any court of competent jurisdiction. The foregoing
notwithstanding, the Company shall have the right to seek injunctive relief from
any court of competent jurisdiction in the event of any breach or threatened
breach of Sections 8, 9 or 11 of this Agreement. Initials: Company:
______________________; Employee: _____________________.
H. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which when taken together
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Employment Agreement
on the date set forth below but effective as of the day and year first written
on page 1 of this Agreement.
PRIMIS, INC.
By:_______________________________________
Dated __________ ___, 1999 Title:____________________________________
("Company")
Dated __________ ___, 1999 __________________________________________
("Employee")
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