EXHIBIT 10.63
[VISTAINFO LOGO]
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement") is made effective as
of January 1, 2001 ("Effective Date"), by and between Vista Information
Solutions, Inc., a Delaware corporation ("VistaInfo"), and Xxxxxx Xxxxxx
("Xxxxxx").
The parties agree as follows:
1. Employment. VistaInfo hereby employes Xxxxxx, and Xxxxxx hereby
accepts such employment, upon the terms and conditions set forth herein.
2. Duties and Term.
2.1 Position. Xxxxxx will be employed in the capacity of Chief
Executive Officer and shall have the duties and responsibilities assigned by the
Board of Directors on the Effective Date and as may be reasonably assigned by
the Board of Directors from time to time. Xxxxxx shall perform faithfully and
diligently all duties assigned to him. During the period Xxxxxx is serving in
the capacity of Chief Executive officer, VistaInfo reserves the right to modify
his position and duties at any time in its sole and absolute discretion,
provided that the title and duties assigned are consistent with the position of
a senior executive and that Xxxxxx continues to report to the Board of
directors.
2.2 Best Efforts/Full-time. Xxxxxx will expend his best efforts
on behalf of VistaInfo, and will abide by all policies and decisions made by
VistaInfo, as well as all applicable federal, state and local laws, regulations
or ordinances. Xxxxxx will act in the best interest of VistaInfo at all times.
Xxxxxx will devote his full business time and efforts to the performance of his
assigned duties for VistaInfo, unless Xxxxxx notifies the Board of Directors in
advance of his intent to engage in other paid work and receives the Board of
Directors' express written consent to do so.
2.3 Initial Term. The employment relationship shall be for an
initial term commencing on the Effective Date set forth above and continuing
for a period of one year following such date ("Initial Term"), unless sooner
terminated in accordance with section 6.
2.4 Renewal. On completion of the Initial Term specified in
subsection 2.3, this Agreement will automatically renew for subsequent one year
terms unless either party provides sixty (60) days' advance written notice to
the other that Company or Xxxxxx does not wish to renew the Agreement for a
subsequent one-year term. In the event either party gives notice of nonrenewal
pursuant to this subsection 2.4, this Agreement will expire at the end of the
current term; provided, however, that if Company provides notice that it does
not wish to renew this Agreement for a subsequent one year term upon expiration
of the Initial Term, then Xxxxxx will be entitled to receive the Severance
Payment set forth in subsection 6.2(a) as long as he complies with the
conditions of subsection 6.2(b).
3. Compensation.
3.1 Base Salary. As compensation for Xxxxxx'x performance of
his duties herein, VistaInfo shall pay to Xxxxxx an initial Base Salary of
$220,000 per year payable in accordance with VistaInfo's normal payroll
practices, less required deductions for state and federal withholding tax,
social security and all other employment taxes and payroll deductions.
In the event Xxxxxx'x employment under this Agreement is terminated by either
party, for any reason, Xxxxxx will earn the Base Salary prorated to the date of
termination.
3.2 Incentive Compensation. Xxxxxx will be eligible to receive
incentive compensation, the terms, amount and payment of which shall be
determined by VistaInfo's Board of Directors in its sole and absolute
discretion.
3.3 Stock Options. Subject to the Board of Directors' approval, from
time to time, Xxxxxx may be granted options to purchase shares of VistaInfo
common stock (the "Option") under the then effective VistaInfo Stock Option Plan
pursuant to the terms and conditions of the Stock Option Grant Agreement and
Stock Option Agreement, which Xxxxxx will be required to sign as a condition of
receiving the Option.
3.4 Performance and Salary Review. The Board of Directors will
review Xxxxxx'x performance on no less than an annual basis. Adjustments to
salary or other compensation awards, if any, will be made by the Board of
Directors in its sole and absolute discretion. Provided, however, that Xxxxxx'x
Base Salary shall not be decreased during the initial Term or during any
subsequent renewal term without Xxxxxx'x written consent.
4. Fringe Benefits. VistaInfo agrees to provide Xxxxxx with the fringe
benefits set forth below. VistaInfo reserves the right to change or eliminate
the fringe benefits on a prospective basis, at any time, effective upon notice
to Xxxxxx. Provided, however, that such Fringe Benefits will not be decreased or
eliminated for Xxxxxx unless they are similarly decreased or eliminated for all
other VistaInfo senior executives.
4.1 Customary Benefits. Xxxxxx will be eligible for all customary
and usual fringe benefits generally available to executives of VistaInfo subject
to the terms and conditions of VistaInfo's benefit plan documents.
4.2 Automobile Allowance. Xxxxxx will receive an automobile
allowance of $500 per month. This allowance will be subject to all required
withholding and other tax requirements.
5. Business Expenses. Xxxxxx will be reimbursed for all reasonable,
out-of-pocket business expenses incurred in the performance of his duties on
behalf of VistaInfo. To obtain reimbursement, expenses must be submitted
promptly with appropriate supporting documentation in accordance with
VistaInfo's policies.
6. Termination of Xxxxxx'x Employment.
6.1 Termination for Cause by VistaInfo. Although VistaInfo
anticipates a mutually rewarding employment relationship with Xxxxxx, VistaInfo
may terminate Xxxxxx'x employment immediately at any time for Cause. For
purposes of this Agreement, "Cause" is defined as: (a) acts or omissions
constituting gross negligence, recklessness or willful misconduct on the part of
Xxxxxx with respect to Xxxxxx'x obligations or otherwise relating to the
business of VistaInfo; (b) Xxxxxx'x material breach of this Agreement; (c)
Xxxxxx'x conviction or entry of a plea of nolo contendere for fraud,
misappropriation or embezzlement, or any felony or crime of moral turpitude; (d)
Xxxxxx'x willful neglect of duties as determined in good faith in the sole and
exclusive discretion of the Board of Directors; (e) Xxxxxx'x failure to perform
the essential functions of his position, with or without reasonable
accommodation, due to a physical or mental disability; and (f) Xxxxxx'x death.
In the event Xxxxxx'x employment is
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terminated in accordance with this subsection 6.1, Xxxxxx shall be entitled to
receive only the Base Salary then in effect, prorated to the effective date of
termination, any benefits and expense reimbursements Xxxxxx is entitled to by
virtue of his prior employment with VistaInfo including any accrued but unpaid
time off ("Standard Entitlements") and the ability to exercise the Option as to
any shares that were vested through the date of this termination, subject to
the terms of the Option. In the event of a termination by VistaInfo for Cause,
Xxxxxx will not be entitled to receive the Severance Payment described in
subsection 6.2(a) and all other VistaInfo obligations to Xxxxxx pursuant to
this Agreement will become automatically terminated and completely extinguished.
6.2 Termination Without Cause by VistaInfo. VistaInfo may terminate
Xxxxxx'x employment under this Agreement without Cause at any time on thirty
(30) days' advance written notice to Xxxxxx. In the event of such termination,
Xxxxxx will receive the Standard Entitlements and the "Severance Payment"
described in subsection 6.2(a), provided Xxxxxx complies with all of the
conditions in subsection 6.2(b). All other VistaInfo obligations to Xxxxxx
pursuant to this Agreement will become automatically terminated and completely
extinguished.
(a) Severance Payment. VistaInfo will provide Xxxxxx with a severance
payment equivalent to one year of Xxxxxx'x Base Salary and a one year
continuation of Fringe Benefits in Section 4.1 then in effect on the date of
termination payable in accordance with VistaInfo's normal bi-monthly payroll
practices, less required deductions for state and federal withholding tax,
social security and all other employment taxes and payroll deductions.
VistaInfo will also provide Xxxxxx with outplacement support provided by a
mutually agreed to firm, not to exceed $15,000. Xxxxxx may retain his laptop
PC, Palm Pilot, mobile phone, and other personal business items while
conducting VistaInfo related services pursuant to subsection 6.2(b)(iii). In
the event of Xxxxxx'x death prior to all twelve months' Severance Payments
being received by him in accordance with this section, any remaining unpaid
Severance Payments due and owing pursuant to this section shall be paid to
Xxxxxx'x estate.
(b) Conditions to Receive Severance Payment: The Severance Payment
will be paid, provided the following conditions are met:
(i) Xxxxxx executes a full general release, releasing all
claims, known or unknown, that Xxxxxx may have against VistaInfo arising out of
or in any way related to Xxxxxx'x employment or termination of employment with
VistaInfo;
(ii) Xxxxxx complies with all surviving provisions of this
Agreement as specified in subsection 12.8;
(iii) Xxxxxx agrees to act as a consultant for VistaInfo, without
further compensation, for twelve (12) months following the termination of his
employment, if requested to do so by VistaInfo and the consulting request does
not unreasonably prevent him from seeking or fulfilling other employment.
6.3 Voluntary Resignation by Xxxxxx
(a) Resignation. Xxxxxx may voluntarily resign his position with
VistaInfo at any time on thirty (30) days' advance written notice. In the event
of Xxxxxx'x resignation, Xxxxxx will be entitled to receive only the Standard
Entitlements. Xxxxxx will not
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be entitled to receive the Severance Payment described in subsection 6.2(a) or
6.4(a), and all other VistaInfo obligations to Xxxxxx pursuant to this Agreement
will become automatically terminated and completely extinguished.
(b) Voluntary Resignation for Good Cause. Xxxxxx may voluntarily
resign his position with VistaInfo with good cause attributable to VistaInfo at
any time on thirty (30) days advance written notice, stating the specific basis
therefor. "Resignation for good cause attributable to VistaInfo" is defined as:
(a) VistaInfo's material breach of this Agreement; (b) material changes to
Xxxxxx'x compensation or benefits packages; and/or (c) insistence by the Board
of Directors on an illegal or improper course of action notwithstanding
objections raised by Xxxxxx. In the event Xxxxxx resigns his employment for good
cause attributable to VistaInfo, Xxxxxx will receive the Standard Entitlements
referred to in Paragraph 6.1 above and the "Severance Payment" described in
section 6.2(a).
6.4 Termination Upon A Change In Control.
(a) Severance Payment. If Xxxxxx'x employment is terminated by
VistaInfo within one year after a Change in Control (as that term is defined
below), other than for Cause (as defined in subsection 6.1), Xxxxxx shall be
entitled to receive the Standard Entitlements; the Severance Payment described
in subsection 6.2(a), and accelerated vesting of Xxxxxx'x Option such that it
will be fully vested on the effective date of Xxxxxx'x termination, provided
Xxxxxx complies with all the conditions described in subsection 6.2(b). All
other VistaInfo obligations to Xxxxxx pursuant to this Agreement will become
automatically terminated and completely extinguished.
(b) 280G. If, due to the benefits provided under subsection 6.4(a),
Xxxxxx is subject to any excise tax due to characterization of any amounts
payable under subsection (a) as excess parachute payments pursuant to Section
4999 of the Internal Revenue Code of 1986, as amended (the "Code"), Xxxxxx may
elect, in his sole discretion, to reduce the amounts payable under subsection
(a) in order to avoid any "excess parachute payment" under Section 280G(b)(1) of
the Code.
(c) Change of Control. A Change of Control is defined as any one of
the following occurrences:
(i) Any "person" (as such term is used in Section 13(d) and
14(d) of the Securities Exchange Act of 1934 (the "Exchange Act")), other than a
trustee or other fiduciary holding securities of VistaInfo under an employee
benefit plan of VistaInfo, becomes the "beneficial owner" (as defined in Rule
13d-3 promulgated under the Exchange Act), directly or indirectly, of the
securities of VistaInfo representing more than 50% (a) the outstanding shares of
common stock of VistaInfo or (b) the combined voting power of the VistaInfo's
then-outstanding securities; or
(ii) the sale or disposition of all or substantially all of
VistaInfo's assets (or any transaction having similar effect is consummated); or
(iii) VistaInfo is party to a merger or consolidation that
results in the holders of voting securities of VistaInfo outstanding immediately
prior thereto failing to continue to represent (either by remaining outstanding
or by being converted into voting securities of the surviving entity) more than
50% of the combined voting power of the voting
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securities of VistaInfo or such surviving entity outstanding immediately after
such merger or consolidation; or
(iv) the dissolution or liquidation of VistaInfo.
7. No Conflict of Interest. During the term of Xxxxxx'x employment and
during any period in which Xxxxxx is receiving payments from VistaInfo pursuant
to this Agreement, Xxxxxx must not engage in any work, paid or unpaid, that
creates an actual or potential conflict of interest with VistaInfo. Such work
shall include, but is not limited to, directly or indirectly competing with
VistaInfo in any way, or acting as an officer, director, employee, consultant,
significant investor, volunteer, lender, or agent of any business enterprise of
the same nature as, or which is in direct competition with, the business in
which VistaInfo is now engaged or in which VistaInfo becomes engaged during the
term of VistaInfo's employment with VistaInfo, as may in good faith, be
determined by VistaInfo in its sole discretion. If VistaInfo believes such a
conflict exists during Xxxxxx'x employment, VistaInfo may ask Xxxxxx to choose
to discontinue the other work or resign employment with VistaInfo. If VistaInfo
believes such a conflict exists during any period in which Xxxxxx is receiving
payments pursuant to this Agreement, VistaInfo may ask Xxxxxx to choose to
discontinue the other work or forfeit the remaining severance payments. In
addition, Xxxxxx agrees not to refer any client or potential client of VistaInfo
to competitors of VistaInfo, without obtaining VistaInfo's prior written
consent, during the term of Xxxxxx'x employment and during any period in which
Xxxxxx is receiving payments from VistaInfo pursuant to this Agreement.
8. Confidentiality and Proprietary Rights. Xxxxxx agrees to read, sign
and abide by VistaInfo's Employee Innovations and Proprietary Rights Assignment
Agreement, which is provided with this Agreement and incorporated herein by
reference.
9. Nonsolicitation.
9.1 Nonsolicitation of Customers or Prospects. Xxxxxx
acknowledges that information about VistaInfo's customers is confidential and
constitutes trade secrets. Accordingly, Xxxxxx agrees that during the term of
this Agreement and for a period of two (2) years after the termination of this
Agreement, Xxxxxx will not, either directly or indirectly, separately or in
association with others, interfere with, impair, disrupt or damage VistaInfo's
relationship with any of its customers or customer prospects by soliciting or
encouraging others to solicit any of them for the purpose of diverting or taking
away business from VistaInfo.
9.2 Nonsolicitation of VistaInfo's Employees. Xxxxxx agrees that
during the term of this Agreement and for a period of two (2) years after the
termination of this Agreement, Xxxxxx will not, either directly or indirectly,
separately or in association with others, interfere with, impair, disrupt or
damage VistaInfo's business by soliciting, encouraging or attempting to hire or
hire any of VistaInfo's employees or causing others to solicit or encourage any
of VistaInfo's employees to discontinue their employment with VistaInfo.
10. Injunctive Relief. Xxxxxx acknowledges that his breach of the
covenants contained in sections 7-9 (collectively "Covenants") would cause
irreparable injury to VistaInfo and agrees that in the event of any such breach,
VistaInfo shall be entitled to seek temporary, preliminary and permanent
injunctive relief without the necessity of proving actual damages or posting any
bond or other security.
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11. Agreement to Arbitrate. To the fullest extent permitted by law, Xxxxxx
and VistaInfo agree to arbitrate any controversy, claim or dispute between them
arising out of or in any way related to this Agreement, the employment
relationship between VistaInfo and Xxxxxx and any disputes upon termination of
employment, including but not limited to, breach of contract, tort,
discrimination, harassment, wrongful termination, demotion, discipline, failure
to accommodate, family and medical leave, compensation or benefits claims,
constitutional claims, and any claims for violation of any local, state or
federal law, statute, regulation or ordinance or common law. Xxxxxx'x right to
file claims for workers' compensation or unemployment insurance benefits and
VistaInfo's right to obtain injunctive relief pursuant to section 10 are
excluded. For the purpose of this agreement to arbitrate, references to
"VistaInfo" include all parent, subsidiary or related entities and their
employees, supervisors, officers, directors, agents, pension or benefit plans,
pension or benefit plan sponsors, fiduciaries, administrators, affiliates and
all successors and assigns of any of them, and this agreement shall apply to
them to the extent Xxxxxx'x claims arise out of or relate to their actions on
behalf of VistaInfo.
11.1 Consideration. The mutual promises by VistaInfo and Xxxxxx to
arbitrate any and all disputes between them (except for those referenced in
section 10) rather than litigate them before the courts or other bodies,
provides the consideration for this agreement to arbitrate.
11.2 Initiation of Arbitration. Either party may exercise the right
to arbitrate by providing the other party with written notice of any and all
claims forming the basis of such right in sufficient detail to inform the other
party of the substance of such claims. In no event shall the request for
arbitration be made after the date when institution of legal or equitable
proceedings based on such claims would be barred by the applicable statute of
limitations.
11.3 Arbitration Procedure. The arbitration will be conducted in San
Diego, California by a single neutral arbitrator and in accordance with
American Arbitration Association ("AAA") then current rules for resolution of
employment disputes. The parties are entitled to representation by an attorney
or other representative of their choosing. The arbitrator shall have the power
to enter any award that could be entered by a judge of the trial court of the
State of California, and only such power, and shall follow the law. In the
event the arbitrator does not follow the law, the arbitrator will have exceeded
the scope of his or her authority and the parties may, at their option, file a
motion to vacate the award in court. The parties agree to abide by and perform
any award rendered by the arbitrator. The arbitrator shall issue the award in
writing and therein state the essential findings and conclusions on which the
award is based. Judgment on the award may be entered in any court having
jurisdiction thereof.
11.4 Costs of Arbitration. VistaInfo shall bear the cost of the
arbitration filing and hearing fees and the cost of the arbitrator.
12. General Provisions.
12.1 Successors and Assigns. The rights and obligations of VistaInfo
under this Agreement shall inure to the benefit of and shall be binding upon
the successors and assigns of VistaInfo. Xxxxxx shall not be entitled to assign
any of Xxxxxx'x rights or obligations under this Agreement.
12.2 Waiver. Either party's failure to enforce any provision of this
Agreement shall not in any way be construed as a waiver of any such provision,
or prevent that party thereafter from enforcing each and every other provision
of this Agreement.
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12.3 Attorneys' Fees. Each side shall bear its own attorneys' fees
in any dispute unless a statutory section at issue, if any, authorizes the award
of attorneys' fees to the prevailing party.
12.4 Severability. In the event any provision of this Agreement is
found to be unenforceable by an arbitrator or court of competent jurisdiction,
such provision shall be deemed modified to the extent necessary to allow
enforceability of the provision as so limited, it being intended that the
parties shall receive the benefit contemplated herein to the fullest extent
permitted by law. If a deemed modification is not satisfactory in the judgment
of such arbitrator or court, the unenforceable provision shall be deemed
deleted, and the validity and enforceability of the remaining provisions shall
not be affected thereby.
12.5 Interpretation; Construction. The headings set forth in this
Agreement are for convenience only and shall not be used in interpreting this
Agreement. This Agreement has been drafted by legal counsel representing
VistaInfo, but Xxxxxx has participated in the negotiation of its terms.
Furthermore, Xxxxxx acknowledges that Xxxxxx has had an opportunity to review
and revise the Agreement and have it reviewed by legal counsel, if desired, and,
therefore, the normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement.
12.6 Governing Law. This Agreement will be governed by and construed
in accordance with the laws of the United States and the State of California.
Each party consents to the jurisdiction and venue of the state or federal courts
in San Diego, California, if applicable, in any action, suit, or proceeding
arising out of or relating to this Agreement.
12.7 Notices. Any notice required or permitted by this Agreement
shall be in writing and shall be delivered as follows with notice deemed given
as indicated: (a) by personal delivery when delivered personally; (b) by
overnight courier upon written verification of receipt. Notice shall be sent to
the addresses set forth below, or such other address as either party may specify
in writing.
12.8 Survival. Sections 7 ("No Conflict of Interest"), 8
("Confidentiality and Proprietary Rights"), 9 (Nonsolicitation), 10 ("Injunctive
Relief"), 10 ("Agreement to Arbitrate"), 12 ("General Provisions") and 13
("Entire Agreement") of this Agreement shall survive Xxxxxx'x employment by
VistaInfo.
13. Entire Agreement. This Agreement, including the VistaInfo Employee
Innovations and Proprietary Rights Assignment incorporated herein by reference
and VistaInfo's Stock Option Plan and related option documents described in
subsection 3.3 of this Agreement, constitutes the entire agreement between the
parties relating to this subject matter and supersedes all prior or simultaneous
representations, discussions, negotiations, and agreements, whether written or
oral. This Agreement may be amended or modified only with the written consent of
Xxxxxx and the Board of Directors of VistaInfo. No oral waiver, amendment or
modification will be effective under any circumstances whatsoever.
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THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY
UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES
HAVE EXECUTED THIS AGREEMENT EFFECTIVE AS OF THE DATE FIRST SET FORTH ABOVE.
XXXXXX XXXXXX
Date: March 09, 2001 By: /s/ XXXXXX XXXXXX
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President & CEO
VISTA INFORMATION SOLUTIONS, INC.
Date: March 09, 2001 By: /s/ XXXXXX X. XXX
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Xxxxxx X. Xxx
Chairman
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