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EXHIBIT 10.5
FORM OF
EMPLOYMENT AGREEMENT
Xxxxxxxxxx.xxx, Inc., a Delaware corporation (the "Company") and Xxxxxx
X. Xxxxxxx ("Executive") enter into this Employment Agreement as of July 7, 1999
(the "Agreement"), effective as of the effective date of the Company's
Registration Statement on Form S-1 (Registration Number 333-79355) filed with
the Securities and Exchange Commission related to its initial public offering of
the Company's common stock (the "Effective Date").
WHEREAS, Company is planning an initial public offering of its stock,
and has begun to take the necessary steps in furtherance of this course of
action;
WHEREAS, as a condition to taking the Company public, the parties have
agreed to enter into a new Agreement; and
WHEREAS, both the Executive and the Company are willing to enter into
this Agreement upon the terms and conditions herein set forth;
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company and
Executive hereby covenant and agree as follows:
1. TERM OF EMPLOYMENT. The Company shall employ Executive, and
Executive shall be employed by the Company for the period that ends on December
31, 2001 or such earlier date as Executive's employment terminates under Section
3 of this Agreement (the "Employment Term"). After expiration of the initial
term, as set forth herein, the Employment Term shall automatically be renewed
each January 1 for successive one-year terms unless the Company or Executive
delivers written notice to the other party at least sixty (60) days preceding
the expiration of the initial term or any one-year extension date of the
intention not to extend the term of this Agreement.
2. PERFORMANCE OF DUTIES. Executive shall have the title of Vice
President of Information Systems. Executive will report to the Company's
President and Chief Executive Officer, or such other officer as the Board of
Directors may direct. Executive will have such powers and perform such duties as
are normally incident to the position of Vice President as provided in the
Company's by-laws and in accordance with applicable law. Executive will
discharge his duties subject to and in observance of such reasonable rules,
regulations, policies, directions and restrictions as may be established from
time to time by the Company.
Throughout the Employment Term, Executive shall devote substantially his full
business time, attention, knowledge and skills, faithfully, diligently and to
the best of his ability, to the active performance of his duties and
responsibilities hereunder, and do such traveling as may reasonably be required
in connection with the performance of such duties and responsibilities.
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3. COMPENSATION.
(a) BASE SALARY. For services rendered by Executive to the
Company during the Employment Term the Company will pay Executive an annual base
salary payable in monthly or more frequent installments, in accordance with the
usual payroll practice of the Company in an amount equal to $125,000 (the "Base
Salary"), less income tax withholdings and other normal employee deductions. The
Base Salary shall not be decreased during the Employment Term but may, at the
sole discretion of the Company, from time to time be increased by an amount
which the Company deems appropriate.
(b) BONUS. At the reasonable determination of the Board, the
Executive shall be eligible to receive an annual bonus based upon the factors
reasonably chosen by the Board, including, without limitation, the profitability
of the Company and performance of, or contribution by, Executive with respect
thereto. Such bonus shall be payable within ninety (90) days after the end of
the fiscal year in which it is earned.
(c) VACATION. Throughout the Employment Term, Executive will
be entitled to take, at such times as are mutually convenient to Executive and
the Company, a total of three (3) weeks of paid vacation annually in accordance
with the Company's policy.
(d) FRINGE BENEFITS. The Company shall make available to
Executive, throughout the Employment Term, such benefits and perquisites as are
generally provided by the Company to its executive employees. Executive shall be
eligible to participate in and receive coverage and benefits under all group
insurance, stock ownership and other employee benefit plans, programs and
arrangements of the Company which are now or hereafter adopted by the Company
for the benefit of its senior executive employees, subject to and on a basis
consistent with the terms, conditions and overall administration of such plans,
programs and arrangements.
(e) BUSINESS EXPENSES. The Company shall reimburse Executive
for the reasonable and necessary business expenses incurred by Executive in
connection with the performance of his employment duties during the Employment
Term. Such expenses shall include, but are not limited to, all expenses of
travel and living expenses while away from home on business or at the request of
and in the service of the Company, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established by the
Company. Reimbursement shall be made upon the presentation by Executive to the
Company of reasonably detailed statements of such expenses.
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4 TERMINATION.
(a) FOR CAUSE. The Employment Term may be terminated at any
time at the option of the Company for "Cause," as defined in this subsection
(a), effective upon Notice of Termination, as defined in subsection (f), to
Executive. As used in this Agreement, the term "Cause" means: (i) Executive's
conviction of, or plea of nolo contendere to, a felony; (ii) Executive's breach
of any legal duty of loyalty to the Company, misappropriation of the Company's
funds, or dishonest, fraudulent, illegal or unethical business conduct; (iii)
Executive's failure to satisfactorily perform his duties under this Agreement,
which failure continues after notice from the Company and a reasonable cure
period; (iv) Executive's breach of the obligations provided in sections 6, 7 or
8 of this Agreement; (v) Executive's illegal use of controlled substances, (vi)
any material breach of this Agreement by the Executive (other than one
identified above) which shall continue after notice from the Company and a
reasonable cure period. Termination for Cause shall be effective immediately for
those events described in subparagraphs (i), (ii), (iv), and (v). Termination
for Cause shall be effective immediately upon the giving of notice by the
Company to Executive of the continuance of Executive's failure to perform or
comply with respect to the items described in subparagraph (iii) above or the
continuance of a breach described in subparagraph (vi) above. In the event that
the Executive is purportedly terminated for cause and a court, arbitrator, or
other tribunal having jurisdiction determines that Cause was not present, then
such purported termination for Cause shall be deemed a termination without Cause
pursuant to section 4(b) and Executive's rights and remedies will be governed by
section 4(g) hereof, in full satisfaction and in lieu of any and all other or
further remedies the Executive may have.
(b) WITHOUT CAUSE. The Company may terminate the Executive
without Cause and for any reason effective upon Notice of Termination to the
Executive or such later date as may be specified in such notice.
(c) DEATH. The Employment Term shall terminate automatically
effective upon the death of Executive.
(d) DISABILITY. The Employment Term shall terminate
automatically effective upon Notice of Termination to Executive (or such later
date as may be specified in such notice) following a determination by the Board
of Directors that the Executive is unable to perform the essential functions of
his employment position due to a disability of Executive that cannot be
reasonably accommodated by the Company.
(e) TERMINATION BY EXECUTIVE. Executive may terminate the
Employment Term upon Notice of Termination to the Company delivered at least 60
days before the effective date of termination.
(f) NOTICE OF TERMINATION. Any termination of the Employment
Term by the Company or by Executive (other than termination upon Executive's
death) shall be
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communicated by written Notice of Termination to the other party hereto. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Employment Term under the section so
indicated.
(g) TERMINATION DISPUTES. If, within 30 days after any Notice
of Termination is given, the party receiving such Notice of Termination notifies
the other party that a dispute exists concerning the termination, the Date of
Termination shall be the date on which the dispute is finally determined, either
by mutual written agreement of the parties, by a binding and final arbitration
award or by a final judgment, order or decree of a court of competent
jurisdiction (the time for appeal therefrom having expired and no appeal having
been perfected).
5. SEVERANCE BENEFITS.
(a) TERMINATION FOR CAUSE OR BY EXECUTIVE. If the Employment
Term is terminated by the Company for Cause under section 4(a) of this
Agreement, or if the Employment Term is terminated by the Executive under
section 4(e) of this Agreement, the Company shall have no further liability
under this Agreement except to pay Executive (i) the value of any accrued salary
or other compensation due to Executive as of the effective date of such
termination, and (ii) any benefit payable under the employee benefit plans,
programs and arrangements of the Company in which Executive is a participant on
the date of delivery of the Notice of Termination.
(b) TERMINATION WITHOUT CAUSE. If the Employment Term is
terminated by the Company without Cause (other than because of death or
disability) under section 4(b), the Company shall pay Executive (A) the value of
any accrued salary or other compensation due to Executive as of the effective
date of such termination, (B) any benefit payable under the employee benefit
plans, programs and arrangements of the Company in which Executive is a
participant on the date of delivery of Notice of Termination, and (C) severance
benefits in an amount equal to the product of Executive's Base Salary in effect
as of the date of such termination, multiplied by one, payable in a lump sum on
or before the fifteenth date following the date of termination.
(c) COMPENSATION UPON DEATH. If the Employment Term is
terminated by the death of the Executive, the Company shall have no further
liability under this Agreement except to pay Executive (i) the value of any
accrued salary, or other compensation due to Executive as of the date of the
Executive's death, and (ii) any benefit payable under all employee benefit
plans, programs and arrangements of the Company in which Executive is a
participant on the date of his death.
(d) COMPENSATION UPON DISABILITY. If the Employment Term is
terminated by the Company under section 4(d) of this Agreement due to
Executive's disability, the
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Company shall have no further liability under this Agreement except to pay
Executive (i) the value of any accrued salary or other compensation due to
Executive as of the effective date of such termination, and (ii) any benefit
payable under the employee benefit plans, programs and arrangements of the
Company in which Executive is a participant on the date of delivery of the
Notice of Termination, provided, however, that in the event Executive is paid
disability benefits under any disability benefit plan of the Company in which he
participates, any salary payments made to Executive during such period shall be
reduced by the sum of such amounts.
6. CONFIDENTIAL INFORMATION.
(a) DISCLOSURE AND USE. Executive shall not disclose or use at
any time, either during or after Executive's employment with the Company or any
other direct or indirect subsidiary of the Company (collectively referred to
herein as the "Company"), any trade secrets or other confidential information,
whether patentable or not, of the Company, including but not limited to,
technical or non-technical data, a formula, pattern, compilation, program,
device, method, technique, drawing, process, financial data, or list of actual
or potential customers or suppliers, of which Executive is or becomes informed
or aware during his employment, whether or not developed by Executive, except
(i) as may be required for Executive to perform his employment duties with the
Company; (ii) to the extent such information has been disclosed to Executive by
a third party who is not subject to restriction on the dissemination of such
information or becomes generally available to the public other than as a result
of a disclosure by a party who is not subject to restriction on the
dissemination of such information; (iii) information which must be disclosed as
a result of a subpoena or other legal process, after the Company has had the
opportunity to request a suitable protective order for such information, or (iv)
unless Executive shall first secure the Company's prior written authorization.
This covenant shall survive the termination of Executive's employment with the
Company, and shall remain in effect and be enforceable against Executive for so
long as any such Company secret or confidential information retains economic
value, whether actual or potential, from not being generally known to other
persons who can obtain economic value from its disclosure or use. Executive
shall execute such reasonable further agreements of Executive's obligations to
the Company concerning non-disclosure of Company trade secrets and confidential
information as the Company may require from time to time.
(b) RETURN OF MATERIALS. Upon termination of the Employment
Term, Executive (or in the event of termination due to Executive's death, his
estate or devisee, legatee or other designee, as applicable) shall promptly
deliver to the Company all assets of the Company, including materials of a
secret or confidential nature relating to the Company's business, which are in
the possession or under the control of Executive.
7. INVENTIONS AND DISCOVERIES. Executive hereby assigns to the Company
all of his rights, title and interest in and to all inventions, discoveries,
processes, designs and other intellectual property, including without
limitation, copyrights, patents, trademarks and trade names (hereinafter
referred to collectively as the "Inventions"), and all improvements on
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existing Inventions made or discovered by Executive during the Employment Term.
Promptly upon the development or making of any such Invention or improvement
thereon, Executive shall disclose the same to the Company and shall execute and
deliver to the Company such reasonable documents as the Company may request to
confirm the assignment of Executive's rights therein and, if requested by the
Company, shall assist the Company in applying for copyrights and trademark
protection and in applying for and prosecuting any patents which may be
available for said Invention or improvement. The Company acknowledges and hereby
notifies Executive that this section 6 does not apply to an Invention for which
no equipment, supplies, facility or trade secret information of the Company was
used and which was developed entirely on Executive's own time, unless (a) the
Invention relates to (i) the business of the Company, or (ii) the Company's
actual or demonstrably anticipated research or development, or (b) the Invention
results from any work performed by Executive for the Company.
8. RESTRICTIVE COVENANTS.
(a) RESTRICTION ON COMPETITION. During the Employment Term and
for a two-year period following the Employment Term, Executive shall not,
without the prior written authorization of the Board of Directors of the
Company, directly or indirectly render services of a business, professional or
commercial nature (whether for compensation or otherwise) to any person or
entity competitive or adverse to the Company's business welfare or engage in any
activity whether alone, as a partner, or as an officer, director, employee,
consultant, independent contractor, or stockholder in any other corporation,
person, or entity which is competitive with or adverse to the Company's business
welfare. This section 8(a) shall not, however, prohibit Executive from investing
in the publicly traded securities issued by any such competitive or adverse
corporation, provided the holdings thereof by Executive do not constitute more
that two percent of any one class of such securities.
(b) RESTRICTION ON EMPLOYEE SOLICITATION. During the
Employment Term and for a two-year period following the Employment Term,
Executive shall not employ or attempt to employ or assist anyone else to employ
any person who is at such time, or at any time during the preceding year was, an
employee of or consultant to the Company, provided that this clause shall not
restrict Executive from employing a third party vendor who supplies generic
services to the industry. As used in this section 8, the verb "employ" shall
include its variations, for example, retain, engage or conduct business with;
the term the "Company" shall include subsidiaries or affiliates, if any, of the
Company.
(c) REASONABLE SCOPE AND TIME. The parties acknowledge that
the time, scope, and other provisions of this Agreement have been specifically
negotiated by the parties and agree that all such provisions are reasonable
under the circumstances and are given as an integral and essential part of
Executive's employment hereunder. In the event that any covenant
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contained in this Agreement is determined by any court of competent jurisdiction
to be unenforceable by reason of its extending for too great a period of time or
by reason of its being too extensive in any other respect, it shall be
interpreted to extend only over the maximum period of time for which it may be
enforceable and to the maximum intent in all other respects as to which it may
be enforceable, all as determined by such court in such action.
9. SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable, either in its entirety or by virtue of its scope or application
to given circumstances, such provision shall thereupon be deemed (i) modified
only to the extent necessary to render it valid, or (ii) not applicable to given
circumstances, or (iii) excised from this Agreement, as the situation may
require, and this Agreement shall be construed and enforced as if such provision
had been included herein as so modified in scope or application, or had not been
included herein, as the case may be.
10. ARBITRATION OF DISPUTES. Any controversy or claim arising out of or
relating to this Agreement, or the breach of this Agreement, (other than a
controversy arising out of or relating to Sections 6, 7 or 8 hereof), shall be
settled by arbitration in Chicago, Illinois, conducted in accordance with the
American Arbitration Association Commercial Arbitration Rules and the
Supplementary procedures for Large, Complex Disputes, by an independent
arbitrator. Either the Company or Executive may institute such arbitration
proceeding by giving written notice to the other party. The decision of the
arbitrator shall be final and binding upon both parties hereto. Judgment upon
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof.
11. ENFORCEMENT. Executive hereby acknowledges that the Company would
suffer irreparable injury if the provisions of sections 6, 7, and 8 herein,
which shall survive the termination of this Agreement, were breached and that
the Company's remedies at law would be inadequate in the event of such breach or
threatened breach. Accordingly, Executive hereby agrees that any such breach or
threatened breach may, in addition to any and all other available remedies
(including those remedies provided in section 10), be preliminarily and
permanently enjoined in a court of law or equity by the Company without bond.
12. LEGAL FEES AND EXPENSES. In the event of litigation or arbitration
under this Agreement, the prevailing party shall be entitled, in addition to
such other relief as may be granted, to its attorneys' fees and costs incurred
by reason of such litigation or arbitration.
13. GENERAL PROVISIONS.
(A) NOTICES. Any notice, request, demand or other
communication required or permitted to be given hereunder shall be in writing
and personally delivered or sent by registered or certified mail, return receipt
requested, or by a facsimile, telegram or telex followed by a confirmation
letter sent by registered or certified mail, return receipt requested, addressed
as follows:
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To the Company: Xxxxxxxxxx.xxx, Inc.
0000 Xxxxx Xxxx
Xxxxxx, XX 00000
Attention: President
Fax: (000) 000-0000
with a copy to: Xxxxx X. Xxxxxxx, Esq.
Xxxxxxxx & Xxxxxx
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
To Executive: Xx. Xxxxxx X. Xxxxxxx
0000 Xxxxx Xxxx
Xxxxxx, XX 00000
Either the Company or Executive may, at any time, by notice to the other,
designate another address for service of notice on such party. When the letter,
facsimile, telegram or telex is dispatched as provided for above, the notice
shall be deemed to be made when the addressee receives the letter, facsimile,
telegram or telex, or within three days after it is sent, whichever is earlier.
(b) AMENDMENTS. Neither this Agreement nor any of the terms or
conditions hereof may be waived, amended or modified except by means of a
written instrument duly executed by the party to be charged therewith.
(c) CAPTIONS AND HEADINGS. The captions and section headings
used in this Agreement are for convenience of reference only, and shall not
affect the construction or interpretation of this Agreement or any of the
provisions hereof.
(d) GOVERNING LAW. This Agreement, and all matters or disputes
relating to the validity, construction, performance or enforcement hereof, shall
be governed, construed and controlled by and under the laws of the State of
Illinois without regard to principles of conflicts of law.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, personal representatives, successors and
permitted assigns.
(f) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original hereof, but all
of which together shall constitute one and the same instrument.
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(g) ENTIRE AGREEMENT. Except as otherwise set forth or
referred to in this Agreement, this Agreement constitutes the sole and entire
agreement and understanding between the parties hereto as to the subject matter
hereof, and supersedes all prior discussions, agreements and understandings of
every kind and nature between them as to such subject matter.
(h) RELIANCE BY THIRD PARTIES. This Agreement is intended for
the sole and exclusive benefit of the parties hereto and their respective heirs,
executors, administrators, personal representatives, successors and permitted
assigns, and no other person or entity shall have any right to rely on this
Agreement or to claim or derive any benefit therefrom absent the express written
consent of the party to be charged with such reliance or benefit.
14. EFFECTIVE DATE. This Agreement shall be effective on the Effective
Date. If the initial public offering is not consummated, this Agreement shall be
null and void.
15. ACKNOWLEDGMENT. EXECUTIVE ACKNOWLEDGES THAT HE HAS READ, UNDERSTOOD
AND ACCEPTS THE PROVISIONS OF THIS AGREEMENT. HE ALSO ACKNOWLEDGES THAT HE HAS
HAD THE OPPORTUNITY TO AND HAS REVIEWED THE TERMS AND CONDITIONS OF THIS
AGREEMENT.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Employment Agreement
as of the date written above.
XXXXXXXXXX.XXX, INC.
By: /s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx, President
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
Vice President of Information
Systems
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