EXHIBIT 10.6
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement" ) is made and entered into as
of November 12, 1934, by and between VISUAL INFORMATION SERVICES CORP., an
Illinois corporation (the "Company"), and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ("Officer") with
reference to the following:
WHEREAS, the Company desires to engage Officer as Senior Vice President -
Technology of the Company and Officer desires to be so engaged by the Company in
such position, on the terms and conditions set forth and described herein.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
hereinafter set forth, the Company and Officer agree as follows:
1. EMPLOYMENT. The Company shall employ Officer in the capacity and on
the terms and subject to the conditions set forth in this Agreement. Officer
hereby accepts such employment.
2. TERM; RENEWAL.
(a) TERM. The term of this Agreement and of Officer's employment
hereunder shall be for a period of three (3) years, commencing on the date
hereof (the "Commencement Date"). Such period of employment is hereinafter
referred to as the "Employment Period."
(b) RENEWAL. Unless either party hereto notifies the other party not less
than 120 days prior to the expiration of the Employment Period of such party's
intent to allow this Agreement and Officer's employment hereunder to expire,
this Agreement and Officer's employment hereunder shall, without further act by
either party, be deemed to be renewed as of the date this Agreement would
otherwise expire for an additional one-year period. Any renewal of this
Agreement pursuant to this subparagraph 2(b) shall be at the annual salary and
bonus and on the other terms and conditions of this Agreement then in effect.
3. DUTIES. Subject to the provisions of this Agreement, during the
Employment Period, the Company shall employ Officer and Officer shall serve the
Company as Senior Vice President - Technology of the Company. During the
Employment Period, Officer shall discharge the obligations and responsibilities
normally associated with such office and shall also perform such other duties in
relation to invention and presentation and responsibilities as the Board of
Directors of the Company (the "Board") shall determine from time to time.
Officer agrees to perform such duties faithfully and to the best of his ability,
to devote his full working time and efforts to the performance of such duties
and not to accept any other gainful employment without the prior written consent
of the Board. During the Employment Period, Officer shall report to the Board.
4. COMPENSATION; FRINGE BENEFITS. For all services rendered by Officer
pursuant to this Agreement, during the Employment Period, the Company shall
compensate Officer as follows:
(a) ANNUAL SALARY. Commencing on the Commencement Date, Officer shall be
entitled to an annual base salary equal to $60,000, which shall be payable in
equal installments by the Company pursuant to the Company's normal payroll
procedures. Officer's annual base salary shall be subject to increase annually
on each year following the Commencement Date as determined by the Board of
Directors, but in no event, less than by a percentage equal to the percentage
increase, if any, in the Consumer Price Index during that year or service.
(b) DISCRETIONARY BONUS. In addition to Officer's annual base salary, the
Company may pay Officer a bonus during the Employment Period.
(c) EMPLOYEE BENEFIT PLANS. During the Employment Period, in addition to
the annual base salary and bonus provided in subparagraphs 4(a) and (b), Officer
shall be entitled to (i) participate under any medical and dental insurance,
death, disability, retirement, profit sharing or other benefit plan of the
Company generally available to similar officers of the Company and for which he
is eligible and (ii) any additional fringe benefits that may be authorized and
approved from time to time by the Executive Compensation Committee of the Board
or, if there is no such committee, by the Board. Officer's participation in
each such benefit plan shall commence on the date hereof, with respect to
existing plans, and as of the earliest practicable date with respect to plans
hereafter instituted by the Company, and shall be subject to the terms and
conditions of each such plan.
(d) EXPENSE REIMBURSEMENTS. During the Employment Period, the Company
shall reimburse Officer promptly for all travel, entertainment, business meeting
and similar expenditures reasonably incurred by Officer in pursuit and
furtherance of the Company's business to the extent such expenditures comply
with the reimbursement requirements and policies established by the Company and
published from time to time.
(e) WITHHOLDING. The Company shall deduct from any payments to be made by
it to the Officer under this Section 4 or under Section 7 any amounts required
to be withheld in respect of any Federal, state or local income or other taxes
and related deductions as required by law.
(f) VACATION. Officer shall be entitled to a paid vacation annually in
accordance with the Company's vacation policy as determined by the Executive
Compensation Committee of the Board or, if there is no such committee, by the
Board.
(g) INDEMNIFICATION AGREEMENT. Upon the request of Officer, the Company
shall promptly take such steps as are necessary to authorize, and shall enter
into, an indemnification agreement with Officer providing for Officer's
indemnification by the company to the fullest extent of applicable law for all
costs, liabilities and expenses incurred by Officer arising out of Officer's
performance of his duties hereunder. The terms of any such indemnification
agreement will be set forth in a separate agreement between the Company and
Officer on terms mutually agreeable to both.
(h) ISSUANCE OF OPTIONS. In addition to the compensation described above,
Officer shall receive options to purchase 72,000 shares of the Company's common
stock under (and
subject to the provisions of) the Company's Stock Option Plan. Nine thousand
(9,000) of such options shall be immediately vested and the remainder shall vest
at a rate of 3,000 options per month (on the first of every month) commencing on
February 1, 1995. Such options shall, have an exercise price of $2.50 per share
and shall be exercisable for a period of ten years.
5. REPRESENTATIONS AND WARRANTIES. Officer represents and warrants to
the Company that there are no agreements or arrangements, whether written or
oral, or any legal considerations applicable to unfair competition, trade
secrets or proprietary information that would be breached or violated by Officer
upon execution of this Agreement or THAT would prevent or impair Officer from
rendering exclusive services to the Company during the Employment Period.
6. TERMINATION. This Agreement and Officer's employment hereunder may be
terminated prior to the expiration of the term hereof upon the first to occur of
(for convenience of reference, the date upon which any termination of the
employment officer pursuant to Section 6 shall be effective shall be hereinafter
referred to as the "Termination Date"):
(a) TERMINATION FOR CAUSE. Officer's employment hereunder and all of the
Company's obligations hereunder (except as hereinafter provided) may be
terminated by the Company immediately for "cause" by giving written notice of
such termination to Officer. For purposes of this Agreement, "cause" shall
mean: (i) Officer's material, willful misconduct which could reasonably be
expected to have a material adverse effect on the business, assets, operations,
results of operations, condition (financial or otherwise), performance or
prospects of the Company (a "Material Adverse Effect"), (ii) Officer's willful
disregard of lawful instructions of the Board consistent with Officer's position
relating to the business of the Company or material neglect of duties or
material failure to act, (iii) the commission by and determination of a court of
law that officer of an act constituting common law fraud or embezzlement, or a
felony or criminal act (other than traffic violations), (iv) Officer's abuse of
alcohol or other drugs or controlled substances, or conviction of a crime
involving moral turpitude, in each case which has or could be reasonably
expected to have a Material Adverse Effect or impairs Officer's ability to
perform his duties hereunder, (v) officer's material breach of a material
provision of this Agreement or (vi) Officer's resignation hereunder. Each of
the matters referred to in the preceding sentence shall be determined in good
faith by the Board. A termination contained in Section 6(a)(i), (ii), (iv)
(other than as a result of a conviction of a crime involving moral turpitude) or
(v) shall take effect 30 days after the giving of the notice contemplated hereby
unless Officer shall, during such 30-day period, remedy to the satisfaction of
the Board the misconduct, disregard, abuse or breach specified in such notice;
PROVIDED, HOWEVER, that such termination shall take effect immediately upon the
giving of such notice if the Board shall have determined that such misconduct,
disregard, abuse or breach is unremediable (which determination shall be stated
in such notice). A termination pursuant to Section 6 (a) (iii), (iv) (as a
result of a conviction of a crime involving moral turpitude) or (vi) shall take
effect immediately upon the giving of the notice contemplated hereby.
(b) TERMINATION DUE TO DISABILITY OR DEATH. Officer's employment
hereunder may be terminated by the Company (i) upon 30 days, notice to officer
in the event that Officer has been unable to perform at least 80% of his duties
under this Agreement for an aggregate of 120 days within any 12-month period, or
can reasonably be expected to be unable to do so for such period, as the result
of Officer's incapacity due to physical or mental impairment, and within 30 days
of receipt of such notice, Officer shall not have returned to the full-time,
continuing performance of his duties hereunder (an "Involuntary Termination")
and (ii) immediately upon the death of officer.
12. EFFECT OF TERMINATION OF EMPLOYMENT. (a) Upon the termination of
officer's employment pursuant to Section 6(a) hereof, neither Officer nor
Officer's beneficiaries or estate shall have any further rights under this
Agreement or any claims against the Company arising out of this Agreement,
except the right to receive, within 30 days of the Termination Date:
(i) the unpaid portion of the annual base salary provided for in
Section 4(a) and payment for any accrued vacation provided for in Section
4(f), in each case computed on a pro rata basis to the Termination Date;
and
(ii) reimbursement for any expenses for which Officer shall not have
theretofore been reimbursed, as provided in Section 4(c) and (d).
(b) Upon the termination of Officer's employment pursuant to Section 6(b)
hereof, neither Officer nor Officer's beneficiaries or estate shall have any
further rights under this Agreement or any claims against the Company arising
out of this Agreement, except the right to receive:
(i) the payments, if any, referred to in Sections 7(a)(i) and (ii);
and
(ii) payment of any annual bonus provided for in Section 4(b), if any,
computed on a pro rata basis to the Termination Date.
(c) Upon any other termination of Officer's employment, neither Officer nor
Officer's beneficiaries or estate shall have any further rights under this
Agreement or any claims against the Company arising out of this Agreement,
except the right to receive:
(i) the payments, if any, referred to in Sections 7(a)(i) and (ii) and
7(b) -ii):
(ii) so long as officer complies with the terms of Sections 8 and 9
hereof following the Termination Date, severance compensation equal to the
annual base salary provided for in Section 4(a) for the greater of (A) the
remainder of the three-year period commencing on the Commencement Date and
(B) the 12-month period commencing on the Termination Date, payable in
equal installments in accordance with the Company's normal payroll
procedures; and
(iii) continued coverage under the benefit arrangements provided
pursuant to Section 4(c)(ii) (or substantially equivalent benefit
arrangements) for the greater of (A) the remainder of the three-year period
commencing on the Commencement Date and (B) the 12 month period commencing
on the Termination Date.
(d) Officer's obligations under Sections 8 and 9 of this Agreement shall
survive the termination of Officer's employment hereunder.
8. CONFIDENTIAL INFORMATION. (a) Officer acknowledges that by reason of
his employment hereunder he will have access to Confidential Information (as
defined below) concerning the business and policies of the Company and any
affiliate thereof. From and after the date hereof, Officer shall not (i)
divulge or disclose, directly or indirectly, any Confidential Information to any
person, firm, corporation or other entity, for any purpose or reason whatsoever,
or (ii) make use of any of the Confidential Information for Officer's purposes
or for the benefit of any person, firm, corporation or other business entity
except the Company or any affiliate thereof, except, in each case, to the extent
(A) such Confidential Information is obtainable from public sources (other than
as a result of Officer's breach of this Agreement) or is known to Officer by
reason of his prior employment by any entity other than the Company or any
predecessor thereof or (B) such disclosure is required by applicable law or
authorized in writing by the company or in connection with Officer's enforcement
of his rights under this Agreement.
(b) For purposes of this Agreement, "Confidential Information" shall mean
all proprietary information relating to the Company and its business (as
currently conducted and as proposed to be conducted), properties and assets.
(c) Officer agrees that at the time of termination of his employment with
the Company, regardless of the reasons therefor, or upon the expiration of this
Agreement, he will deliver to the Company and not deliver to anyone else any and
all originals and copies of all notes, files, memoranda, papers and, in general,
any and all physical matter containing Confidential Information or any other
information related to the conduct of the business of the Company, except for
any document for which the company has given written consent to remove, at the
time of termination of Officer's employment. Officer acknowledges that all such
materials are and shall remain the sole and exclusive property of the Company.
9. NONCOMPETITION. (a) Officer and the Company acknowledge and recognize
that the Company's business has been conducted, and sales of its Products have
been and will be made, in each State of the United states and world-wide, that
the nature of the industry in which the Company competes is highly competitive
and that the company would find it extremely difficult or impossible to replace
Officer. Accordingly, in consideration of the premises and the covenants
contained herein, the consideration to be received hereunder, officer shall not,
during the Employment Period and the Noncompete Period (as hereinafter defined),
(i) directly or indirectly engage in, whether such engagement shall be as an
employee, consultant, officer, director, partner, stockholder (other than
ownership of up to 3% of the outstanding securities of any public company with a
market capitalization of less than $1,000,000,000, ownership of up to 1% of the
outstanding securities of any public
company with a market capitalization of $1,000,000,000 or more or investments in
mutual funds or similar investment vehicles), affiliate or other participant in
any Competitive Business (as hereinafter defined), or represent in any way, any
Competitive Business, whether such engagement or representation shall be for
profit or not, (ii) interfere with, disrupt or attempt to disrupt the
relationship, contractual or otherwise, between the company and any third party,
including, without limitation, any customer, supplier, employee, or consultant
of the Company, or (iii) affirmatively assist, solicit or induce others to
engage in any competitive Business in any manner described in the foregoing
clauses (i) and (ii). As used herein, "Competitive Business" shall mean any
business involving the sale of products in any city or county in any State of
the United States or any other jurisdiction outside of the United States if such
business or the products sold by it are competitive, directly or indirectly,
with (A) the business of the Company, (B) any of the Products or (C) any
products or business being developed or conducted by the Company or any
subsidiaries of the Company during the Employment Period. As used herein,
noncompete Period" shall mean (x) in the event that Officer's employment
hereunder is terminated pursuant to Section 6(a) hereof, the 18-month period
commencing on the Termination Date or (y) in the event that Officer's employment
hereunder is terminated pursuant to Section 6(b), the later of (1) the one-year
period commencing on the Termination Date or (2) 6(b) hereof, the period of time
during which Officer is receiving any severance payments pursuant to Section
7(c)(ii).
(b) Anything to the contrary contained herein notwithstanding subject to
Section 3 hereof, nothing in this Section 11 is intended to prohibit Officer
from making any passive or personal investments, conducting his private business
affairs, donating his time for charitable purposes or giving seminars or
speeches so long as such activities are not competitive with or adverse to the
company, the Business or the Products.
(c) Officer acknowledges and agrees that the breadth of the territorial
restriction in this Section 9 is reasonable and necessary to protect the Company
because, among other things, the Company conducts the Business throughout the
United States and outside the United States; the Business could be located in
any jurisdiction in the United States or outside the United States; and any
lesser restriction would unfairly infringe upon the Company's conduct of the
Business.
(d) Officer understands that the foregoing restrictions may limit his
ability to earn a livelihood in a business similar to the Business, but he
nevertheless believe. that he has received and will receive sufficient
consideration and other benefits from the transactions contemplated by the
Documents and as an employee of the Company and as otherwise provided hereunder
to clearly justify such restrictions which, in any event, given his education,
abilities and skills, Officer does not believe would prevent him from earning a
living.
10. ASSIGNMENT. This Agreement shall inure to the benefit of and shall be
binding upon the Company, its successors and assigns. The obligations and duties
of Officer hereunder are personal and not assignable, whether voluntarily or
involuntarily or by operation of law or otherwise.
11. NOTICES. All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument delivered IN person or sent by telecopy (if automated
confirmation of rull transmission is received), nationally-recognized overnight
courier or first class registered or certified mail, return receipt requested,
postage prepaid, addressed to such party at the address set forth below or such
other address as may hereafter be designated in writing by such party to the
other parties:
(i) if to the Corporation, to:
Visual Information Service Corp.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
(ii) if to Officer, to:
All such notices, requests, consents and other communications shall be deemed to
have been delivered (a) in the case of personal delivery or delivery by telecopy
(if automated confirmation of full transmission is received), on the date of
such delivery, (b) in the case of dispatch by nationally recognized overnight
courier, on the next business day following such dispatch and (c) in the case of
mailing, on the third business day after the posting thereof.
12. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
Company and Officer relating to the subject matter hereof, and it replaces and
supersedes any and all prior agreements between the parties relating to the same
subject matter
13. WAIVER; AMENDMENT. No provision hereof may be waived except by a
written agreement signed by the waiving party. The waiver of any term or
condition of this Agreement shall not be deemed to constitute a waiver of any
other term or condition hereof. This Agreement may be amended only by a
subsequent writing signed by the party or parties to be bound thereby.
14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
15. REMEDIES. All remedies hereunder are cumulative, are in addition to any
other remedies provided for by law and may, to the extent permitted by law, be
exercised concurrently or separately, and the exercise of any one remedy shall
not be deemed to be an election of such remedy or to preclude the exercise of
any other remedy. Officer acknowledges that in the event of any breach of
Officer's covenants contained in Section 8 and 9, the Company shall be entitled
to immediate relief enjoining such violations in any court or before any
judicial body having jurisdiction over such claim.
16. SEVERABILITY. In the event that any provision of this Agreement would
be held in any jurisdiction to be invalid, prohibited or unenforceable for any
reason, such provision, as to such jurisdiction, shall be ineffective, without
invalidating the remaining provisions of this Agreement in any other
jurisdiction. Notwithstanding the foregoing, if such provision could me more
narrowly drawn so as not to be invalid, prohibited or unenforceable in such
jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without
affecting the invalidity or enforceability of such provision in any other
jurisdiction.
17. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which, taken together, shall
constitute one and the same instrument.
18. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be a part
of this Agreement.
19. ATTORNEY FEES. In the event that any party hereto brings an action or
proceeding for a declaration of the rights of the parties under this Agreement,
for injunctive relief, for an alleged breach or default of, or any other action
arising out of, this Agreement or the transactions contemplated hereby, or in
the event any party is in default of its obligations pursuant hereto, whether or
not suit is filed or prosecuted to final judgment, the prevailing party in any
such action or proceeding shall be entitled to reasonable attorneys' fees, in
addition to any court costs incurred and in addition to any other damages or
relief awarded.
IN WITNESS WHEREOF, the Company and Officer have executed this Agreement as
of the date first above written.
VISUAL INFORMATION SERVICE CORP.
By:
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Name:
Title:
OFFICER:
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