1
EXHIBIT 10.37
EMPLOYMENT AGREEMENT
THIS AGREEMENT effective as of April 1, 2001, by and between IntraNet
Solutions, Inc., a Minnesota corporation (hereinafter referred to as "Company")
and Xxxxx Xxxxxx residing at 00000 Xxxxxxx Xxxx, Xxxx Xxxxxxx, XX 00000
(hereinafter referred to as "Employee").
WITNESSETH:
WHEREAS, the Company desires to assure itself of the services of
Employee; and
WHEREAS, Employee desires to be employed by the Company.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto agree as follows:
1. Employment. The Company agrees to employ Employee and Employee agrees
to accept such employment upon the terms and conditions hereinafter set forth.
2. Duties. Employee shall serve in an executive capacity as the Chief
Financial Officer, Treasurer and Secretary of the Company performing such
services as the By Laws provide, and as the Company's Board of Directors may,
from time to time, determine.
3. Terms. This Agreement shall be for a one (1) year period commencing on
the effective date first above written and terminating on March 31, 2002,
subject, however, to prior termination as provided as Section 7 herein.
4. Base Salary. In consideration for the Employee's service under this
Agreement, the Company agrees to pay Employee a Base Salary at a rate of One
Hundred Sixty Five Thousand Dollars ($165,000). Annually, Employee will receive
an annual performance review and the Base Salary may be increased at such time.
The Base Salary shall be subject to any withholding required by law and shall be
payable in accordance with the normal payroll practices of the Company.
5. Annual Bonus. You will be eligible for an annual bonus of up $60,000,
payable quarterly, dependent upon achievement of Company performance and
personal objectives as established by the Chief Executive Officer from time
to time.
6. Additional Benefits and Working Facilities.
(a) The Company shall furnish Employee with the equipment, office
space, secretarial support and such other items related to his employment that
Employee determines are necessary, useful, and appropriate to him for the duties
required by his employment. The Company shall reimburse for reasonable travel,
entertainment and other business related expenses, including but not limited to,
conference membership fees and cellular phone costs and charges, you incur on
behalf of the Company.
(b) The Company shall provide Employee health and dental insurance,
401(k), and any other benefits included in its corporate benefit program. In
addition, Employee shall have the benefit of such other employee benefit plans
that the Company may, from time to time, establish and in which employee would
be entitled to participate pursuant to the terms thereof. COMPANY, AT ITS SOLE
DISCRETION, SHALL HAVE THE RIGHT TO CHANGE OR DISCONTINUE SUCH PLANS.
(c) Employee shall be entitled to annual paid vacation consistent with
the Company's existing vacation policy, and as amended from time to time.
(d) In addition to Section 6(c) above, Employee shall accrue personal
days at the rate of six (6)
2
personal days per year of employment. Any personal days not used within one year
following accrual shall lapse.
(e) The Company shall reimburse Employee for all reasonable expenses
incurred by Employee in connection with the Company's business, upon
presentation of itemized statements therefor.
7. Events of Termination. This Agreement may be terminated as follows:
(a) On the expiration of the term set forth at Section 3 above;
By mutual written agreement of the parties;
(c) Upon Employee's death;
(d) Without notice, by the Company, for cause. "Cause" for purposes
hereof shall mean a determination by the Company's Board of Directors that
Employee has: (i) committed an illegal or dishonest act that directly reflects
upon his fitness to act as Chief Financial Officer of the Company; (ii) breached
his fiduciary obligations to the Company; or (iii) refused or is unable to
perform his duties hereunder, other than as a result of illness or disability,
for a period of one hundred twenty (120) days; or
At the Company's option, without cause, (i) upon 30 days' written
notice to Employee provided the Employee receives 180 days severance pay (Base
Salary only), or (ii) with notice in the event of a change in control of the
Company (as defined in the Company's stock option plan), provided Employee
immediately receives 180 days severance pay (Base Salary only).
8. Inventions.
(a) "Inventions," as used in this Section 8, means any discoveries,
improvements, and ideas (whether or not they are in writing or reduced to
practice) or works of authorship (whether or not they can be patented or
copyrighted) that the Employee makes, authors, or conceives (either alone or
with others) and that:
(i) concern directly the Company's business or the Company's
present or demonstrably anticipated future research or development;
(ii) result from any work that Employee performs for the Company;
(iii) use the Company's equipment, supplies, facilities, or trade
secret information; or
(iv) the Employee develops during the time the Employee is
performing employment duties for the Company.
(b) Employee agrees that all inventions made by the Employee during the
term of this Agreement will be the Company's sole and exclusive property. That
Employee will, with respect to any invention:
(i) keep current, accurate, and complete records, which will
belong to the Company and be kept and stored on the Company's premises while the
Employee is employed by the Company;
(ii) promptly and fully disclose the existence and describe the
nature of the Invention to the Company in writing (and without request);
(iii) assign (and the Employee does hereby assign) to the Company
all of his rights to the Invention, any applications he makes for patents or
copyrights in any country, and any patents or copyrights granted to him in any
country; and
3
(iv) acknowledge and deliver promptly to the Company any written
instruments, and perform any other acts necessary in the Company's opinion to
preserve property rights in the Invention against forfeiture, abandonment, or
loss and to obtain and maintain letters patent and/or copyrights on the
invention and to vest the entire right to title the Invention in the Company.
The requirements of this subsection 8(b) do not apply to any Invention for which
no equipment or trade secret information of the Company was used which was
developed on the Employee's own time and: (1) which does not relate directly to
the Company's business or to the Company's actual or demonstrably anticipated
research or development; or (2) which does not result in any way from any work
the Employee performed for the Company. Except as previously disclosed to the
Company in writing, prior to the commencement of employment hereunder, the
Employee does not have and will not assert, any claims to or rights under any
discoveries, improvements, ideas or works of authorship which are within the
scope of the Company's business. With respect to obligations performed by the
Employee under this subsection 8(b) following termination of employment, the
Company will pay the Employee reasonable hourly compensation (consistent with
the last Base Salary) and will pay or reimburse all reasonable out-of-pocket
expenses.
9. Confidential Information.
(a) "Confidential Information," as used in this Section 9, means
information that is not generally known and that is proprietary. Any
information, that the Employee reasonably should consider Confidential
Information, or the Company designates as Confidential Information, will be
presumed to be Confidential Information (whether the Employee or others
originated it and regardless of how the Employee obtained it).
(b) Except as specifically permitted by the Company's Board of
Directors or by written Company policies, the Employee will never, either during
or after his employment by the Company, use Confidential Information for any
purpose other than the business of the Company or disclose it to any person who
is not also an employee of the Company. When the Employee's employment with the
Company ends, the Employee will promptly deliver to the Company all records and
any compositions, articles, devices, apparatus and other items that disclose,
describe, or embody Confidential Information including all copies, reproductions
and specimens of the Confidential Information in the Employee's possession,
regardless of who prepared them and will promptly deliver any other property of
the Company in the Employee's possession, whether or not Confidential
Information.
10. Conflicts of Interest. The Employee agrees that he will not, directly
or indirectly, transact business with the Company personally, or as agent,
owner, partner or shareholder of any other entity; provided, however, that any
such transaction may be entered into if knowingly approved by all of the
disinterested members of the Company's Board of Directors.
11. Non-Competition Agreement. During the full term hereof, and on the
termination of Employee's employment for any reason, Employee shall not, for a
period of six (6) months from the date of such termination, directly or
indirectly, anywhere in the United States, own, manage, operate or control, or
participate in the ownership, management, operation or control of, or be
connected with, or have any interest in, as a stockholder, director, officer,
employee, agent, advisor, consultant, partner, or otherwise: (i) any "business"
which manufactures, produces, sells, markets or distributes any products or
services that are being manufactured, produced, marketed, sold or distributed by
Company as of the date of such termination; or (ii) any other business which is
competitive with any business currently or hereafter conducted by Company as of
the date of such termination; provided, however, that nothing contained herein
shall prohibit Employee from owning less than 3% of any class of securities
listed on a national securities exchange or traded publicly in the
over-the-counter market. Employee acknowledges and agrees that the provisions of
this Section are both reasonable and valid in geographical and temporal scope
and in all other respects. If any of the provisions of this Section are held to
be unenforceable because of the scope, duration or area of its applicability,
the court making such determination shall have
4
the power to modify such scope, duration or area or all of them, and such
provision shall then be applicable in such modified form.
Employee will, prior to accepting employment, consulting or similar contract or
agreement with any third party, inform that party of this Agreement and provide
that party with a copy of this Agreement.
12. No Adequate Remedy. Employee understands that if the Employee fails to
fulfill the Employee's obligations under Section 8, 9, 10 or 11 of this
Agreement, the damages to the Company would be very difficult to determine.
Therefore, in addition to any other rights or remedies available to the Company
at law, in equity, or by statute, the Employee thereby consents to the specific
enforcement of the provisions of those Sections by the Company through an
injunction or restraining order issued by an appropriate court.
13. Additional Documents. The parties shall each, without further
consideration, execute such additional documents as may be reasonably required
in order to carry out the purpose and intent of this Agreement and to fulfill
the obligation of the respective parties hereunder.
14. Waiver. Any waiver of any term or condition of this Agreement shall not
operate as a waiver of any other breach of such term or condition, or of any
other term or condition, nor shall any failure to enforce a provision hereof
operate as a waiver of such provision or of any other provision hereof.
15. Notices. All communications with respect to this Agreement shall be
considered given if delivered or sent as follows:
(a) If to Employee, by first class certified mail, postage prepaid,
return receipt requested, addressed as follows:
Xxxxx Xxxxxx
00000 Xxxxxxx Xxxx
Xxxx Xxxxxxx, XX 00000
(b) If to the Company, by first class mail, postage prepaid, return
receipt requested, addressed as follows:
Xx. Xxxxxx X. Xxxxx, Chief Executive Officer
IntraNet Solutions, Inc.
0000 Xxxxxx Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
or mailed to such other address as the parties hereto may designate by notice
given in like manner. Notice shall be effective three (3) calendar days after
mailing or upon personal delivery.
5
16. Entire Agreement. This Agreement, together with all exhibits and
writings required or contemplated hereby, constitutes the entire Agreement
between the parties hereto with respect to the transaction contemplated hereby
and no party shall be liable or bound to another in any manner by and
warranties, representations, or guarantees, except as specifically set forth
herein.
17. Modification, Amendments and Waivers. The parties hereto at any time
may, by written Agreement: (i) extend the time for the performance of any of the
obligations or other acts of the parties hereto; (ii) waive any inaccuracies in
the representations and warranties contained in this Agreement or in any
exhibit, schedule, letter, certificate, or other instrument delivered pursuant
hereto; (iii) waive compliance with any of the covenants or agreements contained
in this Agreement; or (iv) make any other modifications of this Agreement. This
Agreement shall not be altered or otherwise amended except pursuant to an
instrument in writing executed by both parties hereto.
18. Severability. No finding or adjudication that any provision of this
Agreement is invalid or unenforceable shall affect the validity or
enforceability of the remaining provision herein, and this Agreement shall be
construed as through such invalid or unenforceable provisions were omitted.
19. Miscellaneous.
(a) The terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the parties hereto and the respective legal
representatives, successors, and assigns of both of the parties hereto.
(b) This Agreement is made pursuant to and shall be construed under the
laws of the State of Minnesota.
(c) This Agreement shall be executed in two (2) counterparts, but each
of these counterparts shall, for all purposes, be deemed to be an original, but
both counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
the date set forth above.
EMPLOYER: EMPLOYEE:
INTRANET SOLUTIONS, INC.
------------------------- ---------------------------
By Xxxxxx X. Xxxxx Xxxxx Xxxxxx
CEO
