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EXHIBIT 10.9
EMPLOYMENT AGREEMENT
THIS AGREEMENT is executed as of the 22nd day of March, 2001 by and between
eshare communications, Inc. a Georgia corporation with offices located at 0000
Xxxxxxxxx Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000 ("eshare" or "Corporation")
and Xxxxxxx X. Xxxxxx (the "Employee").
WHEREAS, the Employee is currently employed by the Corporation as its Executive
Vice President of Sales, and
WHEREAS, the Employee and the Corporation desire to enter into this Agreement,
superseding and replacing all prior agreements and understandings respecting
Employee's employment with the Corporation;
NOW THEREFORE, in consideration of the mutual promises and covenants herein
contained, the parties hereto hereby agree as follows:
1 Services; Salary; Stock Options; Bonus.
(a) The Corporation hereby employs Employee and Employee agrees to
serve as President of Worldwide Sales, driving eshare's sales efforts.
Employee's salary during the Employment Term (as defined in Section 5(a) below)
shall be paid in accordance with eshare's regular payroll practices (less lawful
deductions) as earned at an initial rate of $250,000 per annum. Increases shall
be on a schedule consistent with other employees of eshare consistent with
corporate policy and practice. In no event may Employee's salary be decreased
below the annual rate. Employee will be eligible for a cash bonus, sales and
direct profit incentive plan based on achievement of goals set by the Chief
Executive Officer and Chief Operating Officer. eshare agrees to guarantee
Employee $50,000 bonus potential payable in equal quarterly payments of $12,500
(less lawful deductions) and reconciled consistent with the sales and direct
profit incentive plan. Employee will report to eshare's Chief Operating Officer.
(b) Subject to approval of the eshare's Board of Directors, following
final execution of this Agreement, Employee will be awarded five hundred fifty
thousand options to purchase shares of eshare, under eshare's 1997 Stock Option
Plan ("Plan"), such options to be awarded on a seven year vesting schedule under
the terms of the Plan. Employee will be covered by the Change in Control Policy
under the Plan, which describes a plan for accelerated vesting of stock options
held by Executive Management Team members in the event of a change in control of
the Corporation.
(c) Employee shall be reimbursed by the Corporation for customary and
reasonable expenses incurred in the normal performance of his duties, without
being required to seek the Corporation's prior approval for such expenses.
Employee shall be entitled to participate in the Corporation's health insurance
plan and all other benefits during the Employment Term, on the same basis as
those granted to other management-level Employees.
2. Employee's Commitment of Business Time to the Corporation. Employee agrees to
commit all of his energies during business time to the Corporation during the
Employment Term. Employee agrees that he will not engage in any other employment
or business endeavor (other than personal investing, as limited by Section 4
below) while he is employed by the Corporation.
3. Disclosure and Assignment of Technology to Corporation. Employee has
previously executed a Nondisclosure and Development Agreement which remains in
full force and effect. In the event of a conflict between that agreement and the
provisions of this Agreement, the provisions of this Agreement shall control.
4. Non-Competition and Non-Solicitation.
(a) During the time of Employee's employment with the Corporation, and
for a period of two (2) years immediately following the termination of
Employee's employment under this Agreement, for any reason
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whatsoever (the "Restricted Period"), Employee shall not, directly or
indirectly, on Employee's own behalf, or as a representative of any person or
entity unless approved in advance, in writing by the Corporation's CEO:
(i) provide services to any person or entity engaged in
developing or delivering Customer Interaction Management ("CIM") solutions
within the United States ("Territory"), unless approved in writing by eshare;
(ii) call upon, solicit, induce, recruit or attempt to hire
any employee of the Corporation or of eshare for the purpose or with the intent
of enticing such employee away from or out of the employ of the Corporation or
eshare or their respective affiliates or to enter employment with any other
person or entity; or
(iii) solicit or call upon any customer of the Corporation or
eshare for the purpose of providing services competitive with the Corporation.
Notwithstanding the above, the foregoing covenants shall not be deemed to
prohibit Employee from acquiring, as a passive investor with no involvement in
the operations of the business, not more than two percent (2%) of the capital
stock of a CIM related business whose stock is publicly traded on a national
securities exchange or over-the counter.
(b) Proprietary Information and Trade Secrets. In connection with
Employee's employment hereunder, the Corporation or eshare may disclose to
Employee Proprietary Information and Trade Secrets, as defined below. Employee
may use the Proprietary Information and Trade Secrets solely for the benefit of
the Corporation while Employee is employed by the Corporation. Except for
purposes of performing Employee's duties and responsibilities hereunder,
Employee will hold in confidence and not reproduce, distribute, transmit,
reverse engineer, decompile, disassemble, disclose or transfer, directly or
indirectly, in any form, by any means, or for any purpose, the Proprietary
Information and Trade Secrets or any portion thereof. Employee acknowledges and
agrees that the Proprietary Information and Trade Secrets shall remain the sole
and exclusive property of the Corporation or a third party providing such
information to the Corporation. The disclosure of this Proprietary Information
and Trade Secrets to Employee does not confer upon Employee any license,
interest, or rights of any kind in or to the Proprietary Information and Trade
Secrets, except as provided under this Agreement. Employee agrees to return to
the Corporation, upon request, the Proprietary Information and trade Secrets and
all materials developed by or on behalf of Employee containing or based upon the
Proprietary Information and Trade Secrets. During the two (2) year period
immediately following the termination of Employee's employment under this
Agreement, Employee shall not, at any time or for any reason, disclose any
Proprietary Information. Employee shall not, at any time or for any reason after
termination of Employee's employment under this Agreement, disclose any Trade
Secret, for so long as such information shall remain a trade secret under
applicable law. Under the terms of this Agreement, "Proprietary Information"
shall mean information in any form, other than Trade Secrets, that is of value
to its owner and treated as confidential, and "Trade Secrets" means information
constituting a trade secret within the meaning of Section 10-1-761(4) of the
Georgia Trade Secrets Act of 1990, including all amendments hereafter adopted.
Employee acknowledges that this Agreement and its terms constitute Proprietary
Information and shall not be disclosed to any person other than Employee's legal
and financial advisors, and immediate family members, and in such case only
under an agreement of confidentiality.
(c) Injunction; Remedies; Costs. Employee acknowledges that a breach by
him of any part of this Agreement will result in irreparable and continuing
damage to the Corporation or eshare, which cannot be fully redressed by the
payment of damages to the Corporation or eshare. Accordingly, Employee agrees
that the Corporation or eshare shall be entitled, in addition to any other right
or remedy it may have at law or in equity, to specific performance by temporary
as well as permanent injunction in the event of any breach or threatened breach
of the covenants provided in this Section 4. In addition, the Corporation and
eshare shall be entitled to withhold any payments of amounts otherwise owed to
Employee during the pendency of any dispute with Employee regarding compliance
with the terms of this Agreement.
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(d) Severability; Reformation. The covenants in this Section 4 are
severable and separate, and the unenforceability of any specific covenant shall
not affect the provisions of any other covenant. Moreover, in the event any
court of competent jurisdiction shall determine that the scope, time or
territorial restrictions set forth are unreasonable, then it is the intention of
the parties that such restrictions be enforced to the fullest extent which the
court deems reasonable, and the Agreement shall thereby be reformed.
5. Return of Corporation Property. All records, designs, patents, business
plans, financial statements, manuals, memoranda, lists and other property
delivered to or compiled by Employee by or on behalf of the Corporation, eshare
or their representatives, vendors or customers pertaining to the business of the
Corporation or eshare shall be and remain the property of the Corporation or
eshare, as the case may be, and be subject at all times to their discretion and
control. Likewise, all correspondence, reports, records, charts, advertising
materials, price lists, sales manuals, customer lists, supplier lists, documents
containing Proprietary Information or Trade Secrets, and other similar data
pertaining to the business, activities or future plans of the Corporation or
eshare that is collected by Employee shall be delivered, together with all
copies thereof, promptly to the Corporation without request by it upon
termination of Employee's employment.
6. Inventions and Other Intellectual Property. Employee hereby agrees that all
right, title, and interest in and to all "Work Product" shall be the exclusive
property of the Corporation. For purposes of this Agreement, "Work Product"
shall mean the data, materials, documentation, computer programs, inventions
(whether or not patentable), and al works of authorship, including all worldwide
rights therein under patent, copyright, trade secret, confidential information,
or other property right, created or developed in whole or in part by Employee
during the course of performing Employee's duties and responsibilities
hereunder. All Work Product shall be considered work made for hire by Employee
and owned by the Corporation. If any of the Work Product may not, by operation
of law or otherwise, be considered work made for hire by Employee for the
Corporation, or if ownership of all right, title, and interest of the
intellectual property rights therein shall not otherwise vest exclusively in the
Corporation, Employee hereby assigns to the Corporation, and upon the future
creation thereof automatically assigns to the Corporation, without further
consideration, the ownership of all Work Product. The Corporation shall have the
right to obtain and hold in its own name copyrights, patents, registrations, and
any other protection available in the Work Product. Employee agrees to perform,
at the Corporation's expense, such further acts as may be necessary or desirable
to transfer, perfect, and defend the Corporation's ownership of the Work Product
that are reasonably requested by the Corporation.
7. Term and Termination.
(a) Unless earlier terminated as hereafter provided, the term
of Employee's employment under this Agreement shall be for a period beginning on
the effective date hereof and ending thirty-six months thereafter (the
"Employment Term"). If the Employee's employment hereunder is terminated prior
to the end of the initial thirty-six month period, such shorter period will also
be referred to herein as the "Employment Term." Employee's employment with the
Corporation may be terminated by the Corporation (i) at any time during the
Employment Term for cause (as defined in Section 9), (ii) for any reason, with
or without cause, upon the agreement of a majority of the Corporation's Board of
Directors, or (iii) for the death or Disability (as hereinafter defined) of the
Employee in accordance with this Section.
(b) Employee may initiate a Voluntary Termination at any time
during the Employment Term and for any reason. However, Employee agrees to
provide ninety (90) days advance notice prior to the effective date of a
Voluntary Termination.
(c) If the Corporation terminates Employee's employment during
the initial Employment Term of this Agreement without cause (except as set forth
in this paragraph) as defined in Section 9, or for Employee's failure to achieve
quarterly sales revenue and margin targets set by the Corporation for either two
consecutive quarters or two quarters in a four quarter period, as the sole
remedy hereunder Employee shall be entitled to receive his base salary for
twelve (12) months following the date of such termination (the "Severance
Amount").
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(d) Employee's termination of his employment for "Good Reason"
as defined in Section 7(e) below shall be treated as a termination by the
Corporation without cause for purposes of this Section 7.
(e) Employee shall be entitled to terminate this Agreement for
"Good Reason" if (i) the Corporation desires to make a material and substantial
change in Employee's titles, duties or levels of responsibility or authority for
a reason other than that set forth in Section 7(f), the Board of Directors and
the Employee have discussed the proposal and decision and, after good faith
discussion and attempts to resolve the change to the satisfaction of all
parties, the Employee elects to terminate or (ii) in the event that the
Corporation breaches any of its obligations in the Agreement and does not cure
any such breach within 30 days following notice from Employee.
(f) If the Employee fails to achieve quarterly sales revenue
and margin targets set by the Corporation and communicated in writing to
Employee, for either two consecutive quarters or two quarters in a four quarter
period, in lieu of termination, the Corporation may modify Employee's titles,
duties or levels of responsibilities by written notice to Employee, without a
change in income. Written notification will be given to Employee of failure to
meet documented targets by eshare's Chief Executive Officer or Chief Operating
Officer.
(g) This Agreement shall terminate immediately upon the death
or "Disability" of Employee. "Disability" shall mean an inability of the
Executive to perform each of the material duties of his position with the
Corporation due to injury or sickness, under such terms as are set forth in the
Corporation's Disability Plan, as may be amended from time to time. In the event
of termination of this Agreement upon the death or Disability of Employee,
employee shall receive, as sole consideration, his base salary and a pro rata
portion of his earned bonus, less lawful deductions, through the date of
termination. The foregoing shall not affect any disability insurance coverage to
which Employee is entitled under the Corporation's Disability Plan.
8. Governing Law: Consent to Jurisdiction. This Agreement shall be governed by
the laws of the State of Georgia without giving effect to the principles of
conflicts of law applicable thereto. Each of the parties submits to the
jurisdiction of any state or Federal Court sitting in Gwinnett County, Georgia,
in any action or proceeding arising out of or related to this Agreement and
agrees that all claims in respect of any such action or proceeding may be heard
and determined in any such Court; provided, in the event that Employee has a
claim for damages against the Corporation under this Agreement, Employee may
bring such claim in any state or Federal Court sitting in Suffolk County, New
York or in Gwinnett County, Georgia.
9. Cause. For purposes of this Agreement, "cause" shall be defined as (i)
dishonesty that is detrimental to the Corporation, (ii) habitual insobriety or
drug addition, (iii) commitment of an act of moral turpitude, (iv) violation of
the covenant not to compete or solicit set forth in Section 4 above, (v)
violation of the covenant not to disclose confidential information set forth
herein or in the Nondisclosure and Development Agreement, (vi) failure to
achieve quarterly sales revenue and margin targets set by the Corporation for
either two consecutive quarters or two quarters in a four quarter period, (vii)
failure to act in good faith toward the Corporation, or (viii) ongoing refusal
or failure (other than due to disability), following receipt of notice from the
Corporation, to perform the lawful duties reasonably assigned to Employee by the
Board of Directors or to follow the reasonable lawful orders of the Board of
Directors.
10. Notice. Notices given hereunder shall be deemed to have been duly given on
the date of personal delivery, on the date of receipt if mailed by certified or
registered mail, return receipt requested at his or its address specified on the
applicable signature page hereto or such other address as the addressee may
subsequently notify the other parties of in writing.
11. No Waiver. Any waiver of a breach of any of the terms of this Employment
Agreement shall not operate as a waiver of any other breach of such terms or
conditions or any other terms or conditions, nor shall any failure to enforce
any provision of this Employment Agreement operate as a waiver of the provision
or any other provision.
12. Successors and Assigns. The rights, benefits and obligations of the
Corporation under this Agreement and all covenants and agreements hereunder
shall inure to the benefit of and be enforceable by or against its successors
and assigns. This Agreement shall be binding upon Employee's successors and
assigns. Neither this Agreement nor
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any rights or obligations hereunder shall be
assigned by Employee. eshare agrees that in the event the Corporation fails to
pay a salary or severance payment due and owing by the Corporation to Employee,
if such failure to pay continues for than thirty (30) days following written
notice to eshare, eshare will make such payment.
13. Entire Agreement; Amendment. This Agreement constitutes the entire agreement
among the parties hereto, oral or written, relating to the subject matter
hereof, and supersedes and replaces all prior agreements, understandings and
representations. This Agreement may not be amended or modified, except by means
of written instruments signed by the Corporation and Employee.
14. Severability. If any provision of this Agreement or the application thereof
is held invalid or unenforceable, the invalidity or unenforceability thereof
shall not affect any other provisions or applications of this Agreement which
can be given affect without the invalid or unenforceable provision or
application. To that end, the provisions of this Agreement are to be severable.
IN WITNESS WHEREOF, the Corporation has caused below this Agreement to be
signed, and Employee has executed this Agreement, as of the date first above
written.
eshare communications, Inc.
By:
/s/ XXXXXXXXXX XXXXX
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Xxxxxxxxxx Xxxxx
Employee:
/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
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