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Exhibit 10.9
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 6th day of July, 1998 by and between
SOFTWORKS, Inc., a Delaware corporation (hereinafter the "Company") and XXXXXX
XXXXXX, residing at 0000 X. 00xx Xxxx, Xxxxxxxxx, Xxxxxxxx, 00000 (hereinafter
called the "Employee").
W I T N E S S E T H:
WHEREAS, the Company and the Employee desire to enter into an
Employment Agreement relating to the Company's employment of the Employee; and
WHEREAS, this Agreement is intended to supersede and replace
all prior agreements, understandings and arrangements between the Company and
the Employee, including any and all royalty agreements, relating to such
employment.
NOW, THEREFORE, it is agreed as follows:
1. Retention of Services. The Company hereby retains the
services of Employee, and Employee agrees to furnish such services, upon the
terms and conditions hereinafter set forth.
2. Term. Subject to earlier termination on the terms and
conditions hereinafter provided, and further subject to certain provisions
hereof which survive the term hereof, the term of this Agreement shall be
comprised of a three (3) year period of employment commencing on the date on
which the Company completes an initial public offering (the "IPO") of its
capital stock and terminating three (3) years thereafter. The term of this
Agreement shall automatically be extended for additional one (1) year periods
unless and until the Company or the Employee shall deliver written notice to the
other party hereto no less than ninety (90) days prior to the end of any renewal
term of its desire to terminate this Agreement.
3. Duties and Extent of Services During Period of Employment.
During the term of employment, Employee shall be employed on a full-time basis
as the Vice President of Global Sales of the Company. In such capacity, Employee
agrees that he shall serve the Company under the direction of the President and
Chief Executive Officer of the Company to the best of his ability, shall perform
all duties incident to his offices on behalf of the Company and shall perform
such other duties as may from time to time be assigned to him by the President
and Chief Executive Officer of the Company. Employee shall also serve in similar
capacities of such of the subsidiary corporations of the Company as may be
selected by the Board of Directors and shall be entitled to such additional
compensation therefor as may be determined by the Board of Directors of the
Company. Notwithstanding the foregoing, it is understood and agreed that during
the term hereof the duties of Employee during the period of active employment
shall not be inconsistent with (i) his position and title as the Vice President
of Global Sales or (ii) with those duties ordinarily performed
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by a Vice President of Global Sales.
4. Remuneration. During the period of employment, Employee
shall be entitled to receive the following compensation for his services:
(a) The Company shall pay to Employee a salary at the
rate of $135,000 per annum, payable in equal bi-weekly installments, or in such
other manner as shall be agreeable to the Company and Employee.
(b) In the event that the Company meets or exceeds
the quarterly targets established by the Board of Directors of the Company the
Company shall pay to Employee, as incentive compensation, an amount to be
determined by the Board of Directors. The Company shall pay one-eighth of such
incentive compensation on a quarterly basis not later than thirty (30) days
after the end of each fiscal quarter and shall pay one-half of such incentive
compensation not later than ninety (90) days after the end of each fiscal year
of the Company. The Company agrees to furnish to Employee a copy of such
financial statements not later than thirty (30) days after the end of each
fiscal quarter and ninety (90) days after the end of each fiscal year of the
Company during the term hereof.
(c) The Company shall pay to Employee commissions
based upon a formula as determined by the Board of Directors of the Company in
its sole discretion in an amount to be determined by the Board of Directors.
5. Employee Benefits; Expenses.
(a) During the period of employment, Employee shall
be eligible to participate in the Company's stock option plans, stock purchase
plans or other employee incentive plans (including without limitation its 1998
Stock Option Plan) to the extent determined in the sole discretion of the Board
of Directors of the Company or a committee thereof. The Company will also
provide at its expense during the period of employment life insurance to
Employee in the face amount of up to $1,000,000 to the extent such coverage is
available to the Company at a reasonable cost through a general corporate
insurance policy.
(b) During the period of employment, Employee shall
be furnished with office space and facilities commensurate with his position and
adequate for the performance of his duties; he shall be provided with the
perquisites customarily associated with the position of the Vice President of
Global Sales of the Company; and he shall be entitled to regular vacations
during each year of four (4) weeks in the aggregate.
(c) It is contemplated that during the period of
employment, Employee
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may be required to incur out-of-pocket expenses in connection with the
performance of his services hereunder, including expenses incurred for travel
and business entertainment. Accordingly, the Company shall reimburse Employee
for all reasonable out-of-pocket expenses incurred by Employee in the
performance of his duties hereunder upon submission of reasonable documentation
therefore in accordance with the Company's policies.
(d) All benefits to Employee specifically provided
for herein shall be in addition to, and shall not diminish any rights which
Employee may have or may acquire under any hospitalization, life insurance,
pension, profit sharing or other present or future employee benefit plan or
plans of the Company.
6. Disability. If Employee, during the period of employment,
becomes unable for three consecutive months or more, or any 180 days in any
twelve-month period, due to ill health or other physical or mental incapacity,
to perform his services hereunder, the Company may thereafter, upon at least 45
days' written notice to Employee, place him on disability status. After such
action by the Company, Employee shall only be entitled to the disability
benefits under his insurance policy during the disability period.
7. Confidential Information.
(a) In the course of Employee's employment by the
Company, Employee will have access to and possession of valuable and important
confidential or proprietary data or information of the Company and its
operations. Employee will not during Employee's employment by the Company or at
any time thereafter divulge or communicate to any person nor shall Employee
direct any Company employee, representative or agent to divulge or communicate
to any person or entity (other than to a person or entity bound by
confidentiality obligations similar to those contained herein and other than as
necessary in performing Employee's duties hereunder) or use to the detriment of
the Company or for the benefit of any other person or entity, any of such
confidential or proprietary data or information or make or remove any copies
thereof, whether or not marked or otherwise identified as "confidential" or
"secret." Employee shall take all reasonable precautions in handling the
confidential or proprietary data or information within the Company to a strict
need-to-know basis and shall comply with any and all security systems and
measures adopted from time to time by the Company to protect the confidentiality
of confidential or proprietary data or information.
(b) The term "confidential or proprietary data or
information" as used in this Agreement shall mean information not generally
available to the public, including, without limitation, all database
information, personnel information, financial information, customer lists,
supplier lists, trade secrets, patented or proprietary information, forms,
information regarding operations, systems, services, know how, computer and any
other processed or collated data, computer programs, pricing, marketing and
advertising data.
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(c) Employee will at all times promptly disclose to
the Company in such form and manner as the Company may reasonably require, any
inventions, improvements or procedural or methodological innovations, programs,
methods, forms, systems, services, designs, marketing ideas, products or
processes (whether or not capable of being trademarked, copyrighted or patented)
conceived or developed or created by Employee during or in connection with
Employee's employment hereunder and which relate to the business of the Company
("Intellectual Property"). Employee agrees that all such Intellectual Property
shall be "work-for-hire" and shall be the sole property of the Company. To the
extent any such Intellectual Property does not constitute a "work-for-hire"
under U.S. law, Employee hereby assigns to Company all right, title and interest
in such Intellectual Property. Employee further agrees that Employee will
execute such instruments and perform such acts as may reasonably be requested by
the Company to effectuate such assignment and otherwise to transfer to and
perfect in the Company all rights in such Intellectual Property.
(d) All written materials, records and documents made
by Employee or coming into Employee's possession during Employee's employment by
the Company concerning any products, processes or equipment manufactured, used,
developed, investigated, purchased, sold or considered by the Company or
otherwise concerning the business or affairs of the Company shall be the sole
property of the Company, and upon termination of Employee's employment by the
Company, or upon request of the Company during Employee's employment by the
Company, Employee shall promptly deliver the same to the Company. In addition,
upon termination of Employee's employment by the Company, Employee will deliver
to the Company all other Company property in Employee's possession or under
Employee's control, including, but not limited to, financial statements,
marketing and sales data, customer and supplier lists, database information and
other documents, and any Company credit cards.
(e) The provisions of this Section 7 shall survive
the termination of this Employment Agreement.
8. Non-Competition.
(a) During the term of this Agreement and for one
year thereafter (subject to clause (b) of this Section 8, the "Restricted
Period"), the Employee shall not, without the written consent of the Company,
directly or indirectly,
(i) become associated with, render services to,
invest in, represent, advise or otherwise participate in as an officer,
employee, director, stockholder, partner, promoter, agent of, consultant for or
otherwise, any business which is in competition with any of the Company's
products or services, which is conducted in any of the jurisdictions in which
the Company's business is conducted; provided, however, that nothing contained
herein will prevent Employee
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from owning less than five percent (5%) of any class of equity or debt
securities listed on a national securities exchange or traded in any established
over-the-counter securities market, so long as such involvement with the issuer
of any such securities is solely that of a passive investor;
(ii) for his own account or for the account of any
other person or entity (A) interfere with the Company's relationship with any of
its suppliers, customers, representatives or agents or (B) transact any
business, which is in competition with any of the Company's products or
services, with any customer or supplier of the Company which transacts or has
transacted business with the Company at any time during the term of this
Agreement; or
(iii) employ or otherwise engage, or solicit, entice
or induce on behalf of himself or any other person or entity, the services,
retention or employment of any person who has been an employee, sales
representative, consultant to or agent of the Company within one year of the
date of such offer or solicitation.
(b) In the event that the Employee terminates his
employment hereunder after a breach hereof by the Company, or if the Company
terminates the Employee's employment hereunder other than for cause (as defined
in Section 9(a) hereof), the covenant contained in Section 8(a) hereof shall
extend for a period of one year beyond the termination of the Employee's
employment only if the Company shall pay to the Employee on a monthly basis with
respect to such period an amount equal to the annual compensation otherwise
provided for hereunder with respect to the immediately preceding year during the
term hereof. This Section 8(b) shall be of no effect, and the Employee shall be
subject to the restrictive covenant contained in Section 8(a) hereof without the
Company being obligated to make the payments referred to in the preceding
sentence, if the Company terminates its employment of the Employee for cause (as
defined in Section 9(a) hereof) or if the Employee terminates his employment
hereunder in the absence of a breach hereof by the Company.
(c) The parties hereto intend that the covenants
contained in this Section 8 shall be deemed a series of separate covenants for
each country, state, county and city. If, in any judicial proceeding, a court
shall refuse to enforce all the separate covenants deemed included in this
Section 8 because, taken together, they cover too extensive a geographic area,
the parties intend that those of such covenants (taken in order of the cities,
counties, states and countries therein which are lease populous) which if
eliminated would permit the remaining separate covenants to be enforced in such
proceeding shall, for the purpose of such proceeding, be deemed eliminated from
the provisions of this Section 8.
(d) With respect to the covenants contained in
Sections 7 and 8 of this Agreement, Employee agrees that any remedy at law for
any breach or threatened or attempted breach of such covenants may be inadequate
and that the Company shall be entitled to specific performance or any other mode
of injunctive and/or other equitable relief to enforce its rights
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hereunder or any other relief a court might award without the necessity of
showing any actual damage or irreparable harm or the posting of any bond or
furnishing of other security.
9. Termination.
(a) The Company recognizes that, for the period
during which Employee has been employed and/or associated with the Company, the
Company has been intimately familiar with the ability, competence and judgment
of Employee, which are acknowledged to be of the highest caliber. Accordingly,
the Company and Employee agree that Employee's services hereunder may be
terminated for "cause" by the Company only (i) for an act of fraud or
embezzlement adversely affecting the financial interest of the Company, (ii) in
the event that the Company places Employee on disability status pursuant to
Section 6 hereof more than once during the term hereof, (iii) in the event of a
conviction of the Employee for any felony, (iv) in the event of material breach
by the Employee of the terms of this Agreement, following the receipt by the
Employee of thirty (30) days notice of such breach and the Employee's failure to
cure such breach within such grace period, (v) in the event of any willful
breach by the Employee of this Agreement, or (vi) in the event that the Employee
materially breaches any of his representations, warranties, covenants or
agreements contained in the underwriting agreement to be executed by the
Company, SoundView Financial Group, Inc. and Xxxxxxx Xxxxx & Associates, Inc.
This Agreement shall also terminate on the death of Employee.
(b) If the Company terminates Employee's employment
hereunder for any reason other than for "cause" as set forth in Section 9(a)
hereof, Employee's compensation shall be paid to him as provided hereunder for
the greater of the (i) remainder of the term of this Agreement or (ii) two
years. If the Company terminates Employee's employment hereunder for "cause" as
set forth in Section 9(a) hereof, Employee shall not be entitled to receive any
further compensation hereunder which has not already been earned pursuant to the
terms hereof. Employee and the Company acknowledge that the foregoing provisions
of this paragraph 9(b) are reasonable and are based upon the facts and
circumstances of the parties at the time of entering into this Agreement, and
with due regard to future expectations.
10. Consolidation or Merger. In the event of any consolidation
or merger of the Company into or with any other corporation during the term of
this Agreement, or the sale of all or substantially all of the assets of the
Company to another corporation, person or entity during the term of this
Agreement, such successor corporation shall assume this Agreement and become
obligated to perform all of the terms and provisions hereof applicable to the
Company, and Employee's obligations hereunder shall continue in favor of such
successor corporation.
11. Notices. Any notice to be given to the Company hereunder
shall be deemed sufficient if addressed to the Company in writing and delivered
or mailed by certified or registered mail to its offices at 0000 Xxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, or such
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other address as the Company may hereafter designate, with a copy to Xxxxx X.
Xxxxxxxxx, Esq., Blau, Kramer, Wactlar & Xxxxxxxxx, P.C., 000 Xxxxxxx
Xxxxxxxxxx, Xxxxxxx, Xxx Xxxx 00000. Any notice to be given to Employee
hereunder shall be delivered or mailed by certified or registered mail to him
at: 0000 X. 00xx Xxxx, Xxxxxxxxx, Xxxxxxxx, 00000 (or such other address as he
may hereafter designate.
12. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the successors and assigns of the Company, and
unless clearly inapplicable, all references herein to the Company shall be
deemed to include any such successor. In addition, this Agreement shall be
binding upon and inure to the benefit of the Employee and his heirs, executors,
legal representatives and assigns; provided, however, that the obligations of
Employee hereunder may not be delegated without the prior written approval of
the Board of Directors of the Company.
13. Amendments. This Agreement may not be altered, modified,
amended or terminated except by a written instrument signed by each of the
parties hereto.
14. Prior Agreements Superseded. This Agreement supersedes any
employment or consulting agreements, oral or written, entered into between
Employee and the Company prior to the date of this Agreement.
15. Change of Control.
(a) In the event there shall be a change in the present
control of the Company, as hereinafter defined, and the Employee's working
conditions as contemplated hereby shall have been adversely affected as a result
thereof, Employee shall have the option, exercisable within six (6) months of
his becoming aware of such event, to terminate this Agreement forthwith. Upon
such termination, Employee shall have the right to immediately receive as a lump
sum payment an amount equal to three times the total compensation paid to
Employee during the immediately preceding fiscal year of the Company, less
$1.00.
(b) For purposes of this Agreement, a change in the
present control of the Company shall mean:
(i) if any "person" (as such term is used in Section
13(d) and 14(d) of the Exchange Act) other than Computer Concepts Corp., the
Company or any "person" who on the date of this Agreement is a director or
officer of the Company, becomes the "beneficial owner" (as defined in Rule
13(d)-3 under the Exchange Act), directly or indirectly, of securities of the
Company representing thirty percent (30%) of the voting power of the Company's
then outstanding securities; or
(ii) if during any period of two (2) consecutive
years during the term of this
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Agreement, individuals who at the beginning of such period constitute the Board
of Directors cease for any reason to constitute at least a majority thereof,
unless the election of each director who is not a director at the beginning of
such period has been approved in advance by directors representing at least
two-thirds (2/3) of the directors then in office who were directors at the
beginning of the period.
16. Applicable Law. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of Delaware,
without regard to conflicts of laws.
17. Acknowledgment. Employee acknowledges that he has
carefully read this Agreement and hereby represents and warrants to the Company
that Employee's entering into this Agreement, and the obligations and duties
undertaken by Employee hereunder, will not conflict with, constitute a breach of
or otherwise violate the terms of any other agreement to which Employee is a
party and that Employee is not required to obtain the consent of any person,
firm, corporation or other entity in order to enter into and perform his
obligations under this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
SOFTWORKS, Inc.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: President &
Chief Executive Officer
/s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President of
Global Sales
