Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated effective September 27,
2005, is between InfoNow Corporation, a Delaware corporation (the "Company"),
and XXXX X. XXXXX ("Employee").
In consideration of the mutual covenants and agreements contained herein,
the parties hereto agree as follows:
1. Employment. The Company hereby employs Employee, and Employee hereby
agrees to be employed by the Company for the period and upon the terms and
conditions hereinafter set forth.
2. Capacity and Duties. Employee shall be employed by the Company as its
Executive Vice President of Field and Client Operations. During his employment
Employee shall perform the duties and bear the responsibilities commensurate
with his position and shall serve the Company faithfully and to the best of his
ability, under the direction of the Chief Executive Officer of the Company.
Employee shall devote his entire working time, attention and energies to the
business of the Company. His actions shall be such that they do not discredit
the Company or its products and services. Except for his involvement in personal
investments, provided such involvement does not require any significant services
on his part, Employee shall not engage in any other business activity or
activities that require significant personal services by Employee or that, in
the judgment of the board of directors, may conflict with the proper performance
of Employee's duties hereunder.
3. Compensation.
(a) For all services rendered by Employee the Company shall pay Employee
during the term of this Agreement an annual salary as set forth herein, payable
semimonthly in arrears. Employee's initial annual salary shall be $225,000.
During the term of this Agreement, the amount of Employee's salary shall be
reviewed at periodic intervals and, upon agreement of the parties hereto,
appropriate adjustments in such salary may be made.
(b) In addition to salary payments as provided in Section 3(a), the
Company shall provide Employee, during the term of this Agreement, with the
benefits of such insurance plans, hospitalization plans and other employee
fringe benefit plans as shall be generally provided to employees of the Company
and for which Employee may be eligible under the terms and conditions thereof.
Nothing herein contained shall require the Company to adopt or maintain any such
employee benefit plans. Employee shall be provided a parking space at the
Company's building, and the Company shall reimburse Employee for parking at a
rate of $75.00 per month.
(c) During the term of this Agreement, except as otherwise provided in
Section 5(b), Employee shall be entitled to sick leave consistent with the
Company's customary sick leave. Employee shall be entitled to four weeks annual
vacation, in addition to the Company's holidays as outlined in the Company's
employee handbook.
(d) During the term of this Agreement, the Company shall reimburse
Employee for all reasonable out-of-pocket expenses incurred by Employee in
connection with the business of the Company and in the performance of his duties
under this Agreement upon presentation to the Company of an itemized accounting
of such expenses with reasonable supporting data.
(e) Beginning on October 1, 2003, Employee shall participate in the
Company's executive compensation program, pursuant to which Employee shall be
eligible to earn a bonus based on defined quarterly revenue targets (the
"Targets"). The amount of Employee's bonus will be based on the following
schedule:
Target Achievement Bonus Rate
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(Based on 3 month fiscal quarter)
First $2.5 million of quarterly revenue 0.5% of quarterly revenue (e.g.,
$12,500 for $2.5 million total quarterly
revenue)
Above $2.5 million of quarterly revenue 2.0% of quarterly revenue above $2.5
million (e.g., $42,500 for $4.0 million total
quarterly revenue)
The maximum quarterly bonus that can be earned per quarter under this agreement
is $87,500 in 2003, $87,500 in 2004, $212,500 in 2005 and $337,500 in 2006.
These maximum quarterly bonuses correspond to a maximum bonus eligible quarterly
revenue level of $6.25 million in 2003, $6.25 million in 2004, $12.50 million in
2005 and $18.75 million in 2006.
4. Term/Severance.
(a) The term of this Agreement shall be from the first date of full-time
employment with the Company, currently anticipated to be October 1, 2003, until
October 31, 2006, unless sooner terminated in accordance with Section 5. The
provisions of Sections 6, 7 and 8 shall remain in full force and effect for the
time periods specified in such Sections notwithstanding the termination of this
Agreement.
(b) If this Agreement is terminated by the Company prior to the end of
its term pursuant to Section 5(d), then the Company shall pay to Employee one
half of one year's annual base salary in 12 semi-monthly installments as
severance. Company shall continue to provide Employee, during this six-month
severance period, with the benefits of such insurance plans and hospitalization
plans as shall be generally provided to employees of the Company during this
same period. The Company shall deduct from such severance payment all applicable
deductions and withholdings, including Employee's portion of insurance plans and
hospitalization plans.
(c) If this Agreement is terminated prior to the end of its term
pursuant to Sections 5(a) or 5(b), then the Company shall pay to Employee or his
estate, as the case may be, three months' base salary in six semi-monthly
installments as severance. The Company shall deduct from such severance payment
all applicable deductions and withholdings.
5. Termination.
(a) If Employee dies during the term of this Agreement, this Agreement
shall be considered terminated on the date of Employee's death.
(b) If during the term of this Agreement Employee is prevented from
performing the essential function of his job by reason of illness or incapacity
for a continuous period of 120 days, the Company may terminate this Agreement
upon 30 days' prior notice thereof to Employee or his duly appointed legal
representative. For the purposes of this Section 5(b), a period of illness or
incapacity shall be deemed "continuous" notwithstanding Employee's performance
of his duties during such period for continuous periods of less than 15 days in
duration.
(c) The Company may terminate this Agreement at any time upon Employee's
(i) commission of any felony, act of fraud or act of flagrant dishonesty, (ii)
gross negligence or (iii) material breach of any obligation created by this
Agreement, and Employee shall not be entitled to any compensation upon such
termination other than wages accrued under Section 3(a) of this Agreement and
payment for accrued vacation.
(d) The Company may terminate this Agreement at any time for any or no
reason upon payment to Employee of one half of one year's annual salary in
accordance with Section 4(b). The Company shall be deemed to terminate this
Agreement under this Section 5(d) upon the occurrence any of the following
events: (i) Employee is assigned any responsibility or duty materially
inconsistent with his position, duties and responsibilities as Executive Vice
President of Field and Client Operations of the Company if such event shall
continue for a period of 10 days following written notice from Employee to the
Company, (ii) a reduction in Employee's annual salary or bonus amounts (but not
a change in the Targets), (iii) Employee is required to relocate his place of
work or residence to any city or community outside of the Denver, Colorado metro
area, or (iv) the Company's material breach of any obligation created by this
Agreement if such breach shall continue for a period of 10 days following
written notice from Employee to the Company.
(e) Employee may terminate this Agreement upon 60 days' prior notice to
the Company, and Employee shall not be entitled to any compensation upon such
termination other than wages accrued under Section 3(a) of this Agreement and
payment for accrued vacation.
6. Confidential Information.
(a) As used in this Agreement, the term "Confidential Information" shall
include all nonpublic information concerning or arising from the Company's
business, including, without limitation, trade secrets used or developed by the
Company in connection with its business; information concerning the manner and
details of the Company's operation, organization and management; financial
information and/or documents and nonpublic policies, procedures and other
printed or written material generated or used in connection with the Company's
business; the Company's business plans and strategies; the identities of the
Company's customers and the specific individual customer representatives with
whom the Company works and details of the Company's relationship with such
customers and customer representatives; the identities of distributors,
suppliers, contractors and vendors utilized in the Company's business and
details of the Company's relationship with such distributors, suppliers,
contractors and vendors; the nature of fees and charges made to the Company's
customers; nonpublic forms, contracts and other documents used in the Company's
business; the nature and content of computer software used in the Company's
business, whether proprietary to the Company or used by the Company under
license from a third party; and/or other information concerning know-how,
research, inventions, copyrights, trademarks, patents, processes, designs,
methods, concepts, prospects, customers, employees, contractors, earnings,
products, services, formulas, recipes, compositions, machines, equipment,
systems, and/or prospective and executed contracts and other business
arrangements.
(b) Except in connection with and in furtherance of Employee's duties
with and on behalf of the Company, Employee shall not at any time or in any
manner use, disclose, or otherwise communicate any Confidential Information to
any person or entity without the Company's prior written consent.
(c) Employee acknowledges that during the term of this Agreement,
Employee will have access to Confidential Information, all of which shall be
made accessible to Employee only in strict confidence; that unauthorized
disclosure of Confidential Information will damage the Company's business; that
Confidential Information would be susceptible to immediate competitive
application by a competitor of the Company; that the Company's business is
substantially dependent on access to and the continuing secrecy of Confidential
Information; that Confidential Information is unique and proprietary to the
Company and known only to Employee, the Company and certain key employees and
contractors of the Company; and that title, ownership, possession and control of
Confidential Information shall at all times remain vested in the Company.
(d) All documents or other records containing or referring to
Confidential Information that are prepared by or provided to Employee during the
term of this Agreement or that come into Employee's possession in connection
with Employee's performance of services under this Agreement are and shall
remain the Company's property. Employee shall not copy or use any such documents
or Confidential Information for any purpose not relating directly to Employee's
duties under this Agreement, nor shall Employee market or in any way provide or
make available to any party other than the Company any of the Confidential
Information, except pursuant to prior written authorization from the Company.
Upon the termination of this Agreement for any reason and regardless of the
circumstances of such termination or the existence of any dispute between
Employee and the Company following or concerning the termination of Employee's
employment, or upon the request of the Company, its successors or assigns,
Employee shall immediately deliver to the Company or its designee (and will not
keep in Employee's possession or deliver to anyone else) any and all
Confidential Information. Notwithstanding any other provision of this Agreement,
this Agreement shall not bar Employee from complying with any subpoena or court
order, provided that prior to doing so Employee shall give the Company's Chief
Executive Officer prior written notice, at the Company's principal place of
business, of Employee's receipt of any such subpoena or court order as far as
possible in advance of the appearance time set forth in the subpoena or court
order.
(e) Employee acknowledges that the Company has received and in the
future will receive from third parties confidential information, proprietary
information and trade secrets, and that the Company must maintain the
confidentiality of such information and use it only for proper purposes.
Employee shall not use or disclose any such information except as permitted by
the Company or the third party to whom the information belongs. Employee shall
not, during Employee's employment with the Company, improperly use or disclose
any confidential information, proprietary information or trade secrets belonging
to any former employer or any third party to whom Employee owes a duty of
nondisclosure.
7. Covenant Not to Interfere.
(a) During the term of this Agreement (or, if longer, during the term of
Employee's employment with the Company or any of its affiliates) and for a
period of 12 months after termination of this Agreement (or, if later,
termination of Employee's employment with the Company or any of its affiliates),
Employee shall not (i) cause or attempt to cause any employee of the Company or
of any of its affiliates to leave the employ of the Company or any affiliate,
(ii) in any way interfere with the relationship between the Company and any
employee or between an affiliate and any employee of the affiliate, (iii) hire
any employee of the Company or of any affiliate to work for any organization of
which Employee is an officer, director, employee, consultant, independent
contractor or owner of an equity or other financial interest, or (iv) interfere
with any transaction in which the Company or any of its affiliates was involved
during the term of this Agreement or his employment.
(b) Employee acknowledges that through his employment with the Company
he will acquire access to information suited to immediate application by a
business in competition with the Company. Accordingly, Employee considers the
foregoing restrictions on his future employment or business activities in all
respects reasonable.
8. Injunctive Relief. Employee acknowledges that upon a breach of any
obligation under this Agreement, the Company will suffer immediate and
irreparable harm and damage for which money alone cannot fully compensate the
Company. Upon a breach by Employee of any of the provisions of Sections 6 or 7
of this Agreement, the Company shall be entitled to an injunction restraining
Employee from such breach. Nothing herein shall be construed as prohibiting the
Company from pursuing any other remedies for such breach or threatened breach,
including recovery of damages from Employee.
9. Indemnity. Article V of the Company's bylaws provides that the Company
shall indemnify officers and directors of the Company to the fullest extent
authorized or permitted by law. Any repeal or modification of Article V of the
Company's bylaws shall be prospective only with respect to Employee and shall
not adversely affect any right or protection of, or any limitation of the
liability of, Employee existing at, or arising out of facts or incidents
occurring prior to, the effective date of such repeal or modification.
10. Waiver of Breach. A waiver by the Company of a breach of any provision
of this Agreement by Employee shall not operate or be construed as a waiver of
any subsequent breach by Employee.
11. Severability. It is the desire and intent of the parties that the
provisions of this Agreement shall be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular provision or portion of
this Agreement shall be adjudicated to be invalid or unenforceable, this
Agreement shall be deemed amended to delete therefrom the portion thus
adjudicated to be invalid or unenforceable, such deletion to apply only with
respect to the operation of this Section in the particular jurisdiction in which
such adjudication is made.
12. Notices. All communications, requests, consents and other notices
provided for in this Agreement shall be in writing and shall be deemed given if
mailed by first class mail, postage prepaid, addressed as follows:
(i) If to the Company: to its principal office
at 0000 Xxxxxxxx Xxxxxx,
Xxxxx 0000,
Xxxxxx, XX 00000;
(ii) If to Employee: [home address omitted]
or such other address as either party may hereafter designate by notice as
herein provided. Notwithstanding the foregoing provisions of this Section 12, so
long as Employee is employed by the Company any such communication, request,
consent or other notice shall be deemed given if delivered as follows: if to the
Company, by hand delivery to the Chief Executive Officer of the Company, and if
to Employee, by hand delivery to him.
13. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Colorado.
14. Assignment. The Company may assign its rights and obligations under
this Agreement to any affiliate of the Company upon the written consent of
Employee or to any acquirer of substantially all of the business of the Company,
and all covenants and agreements hereunder shall inure to the benefit of and be
enforceable by or against any such assignee. Neither this Agreement nor any
rights or duties hereunder may be assigned or delegated by Employee.
15. Entire Agreement. This Agreement, including the exhibits attached
hereto, sets forth the entire agreement and understanding of the parties and
supersedes all prior understandings, agreements or representations by or between
the parties, whether written or oral, which relate in any way to the subject
matter hereof.
16. Amendments. No provision of this Agreement shall be altered, amended,
revoked or waived except by an instrument in writing signed by the party sought
to be charged with such amendment, revocation or waiver.
17. Binding Effect. Except as otherwise provided herein, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective legal representatives, heirs, successors and assigns.
* * * * * * *
IN WITNESS WHEREOF the parties have executed this Agreement as of the date
first above written.
INFONOW CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Interim Chief Executive Officer
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
Executive Vice President, Field and Client Operation
