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EXHIBIT 10.57
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the 23rd day
of April, 1999 (the "Effective Date"), between GANYMEDE CORPORATION (the
"GANYMEDE"), an Illinois corporation and Xxxx Xxxxxx, a resident of Xxxx Ellyn,
DuPage County, Illinois (the "Employee").
W I T N E S S E T H:
WHEREAS, pursuant to the terms of that certain Stock Purchase Agreement
and related documents and agreements of event date herewith (the "Purchase
Agreement") by and between the Employee, among others, and GANYMEDE, HomeCom has
acquired all of the issued and outstanding shares of the capital stock of
Ganymede; and
WHEREAS, the Employee has been a senior executive officer of GANYMEDE;
and
WHEREAS, after giving effect to the Purchase Agreement, GANYMEDE shall
become a wholly-owned subsidiary of HomeCom; and
WHEREAS, GANYMEDE desires to retain the services of and employ the
Employee to continue in his role as a senior executive officer of GANYMEDE, and
the Employee desires to provide such services upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound hereby,
agree as follows:
1. Employment. GANYMEDE hereby employs the Employee as their employee
in the capacity of Senior Executive Officer of GANYMEDE, and the Employee hereby
accepts such employment. During the Employment Term, the Employee shall perform
such duties as shall reasonably be required of an employee of GANYMEDE which are
outlined on Exhibit "A" attached hereto and incorporated herein by reference for
all purposes.
2. Performance. The Employee agrees to devote his business efforts to
the performance of his duties hereunder; provided, however, that the Employee
may continue to teach within academic settings and engage in passive securities
investment activities for his own account so long as they do not interfere with
the performance of his duties hereunder. Employee agrees to devote his full
professional time and energy to Ganymede's business and shall not during the
term of employment work or perform services in any advisory or other capacity
for any other individual or entity without disclosing to HomeCom the
relationship. If HomeCom objects to the disclosed relationship, with the
exception of academic teaching, Employee will refrain from continuing that
relationship.
3. Term of Employment. Unless otherwise terminated in accordance with
the terms hereof, the initial term of this Agreement (the "Employment Term")
shall be two (2) years
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commencing on the Effective Date. Notwithstanding anything contained herein to
the contrary, Employer may terminate this Agreement at any time by written
notice as further described in Section 13. In the event that HomeCom is
purchased by another entity, Employee has the option to terminate employment and
the contract without penalty.
4. Basic Compensation. The basic minimum annual salary (the "Salary")
of the Employee for his employment services hereunder shall be one hundred
thousand dollars ($100,000) per year, commencing on the Effective Date
throughout the Employment Term. The Salary shall be payable in equal
semi-monthly installments. Employee's salary shall be prorated on a daily basis
based upon the number of hours actually worked in a forty (40) hour work week,
which compensation shall in no event exceed a maximum of forty (40) hours per
week. In each year of the Employment Term, Ganymede shall annually review the
Employee to determine his eligibility to receive an annual Salary raise together
with performance bonuses based upon the performance of Ganymede, unless Ganymede
is integrated into HomeCom; then the bonus will be based upon the performance of
HomeCom. These reviews shall be conducted during the previous annual period,
subject to the sole determination of the Compensation Committee of HomeCom's
Board of Directors, in its sole discretion.
5. Benefits. As an employee of Ganymede, Employee shall be entitled to
participate in all profit sharing plans, supplemental compensation arrangements,
stock option incentive plans, medical, dental and life insurance programs or any
other fringe benefits offered by Ganymede/HomeCom to its senior management
employees (the "Benefits"). The Salary received by the Employee hereunder shall
be in addition to the foregoing Benefits.
6. Expense Account and Vacations. Ganymede agrees to reimburse the
Employee for all expenses reasonably incurred by him on behalf of Ganymede in
accordance with the prevailing practice and policy of Ganymede, which prevailing
practice and policy shall be disseminated to the Employee by Ganymede
contemporaneous with the execution of this Agreement. These dues will be paid
for the duration of Employee's employment. In addition, the Employee shall be
entitled to that number of days of paid vacation and paid sick leave as is
consistent with the prevailing practice and policy of Ganymede for other senior
management employees in the same or similar position as that held by the
Employee hereunder.
7. Customer Non-Solicitation. Employee agrees that for a period of one
(1) year immediately following termination of Employee's employment with
Ganymede, HomeCom or its subsidiaries or affiliates for any reason, including,
without limitation, voluntary resignation from employment by Employee
("Non-Solicitation Period"), Employee shall not, on Employee's own behalf or on
behalf of any person, firm, partnership, association, corporation or business
organization, entity or enterprise, solicit, contact, call upon, communicate
with or attempt to communicate with any customer or immediate prospect of
Ganymede, HomeCom or its subsidiaries or affiliates, or any representative of
any customer or immediate prospect of Ganymede, HomeCom or its subsidiaries or
affiliates with whom the Employee had Material Contact ("Material Contact") with
a view to sale or providing any product or service competitive or potentially
competitive with any product or service sold or provided or under development by
Ganymede during the time of two (2) years immediately preceding cessation of
Employee's employment with Ganymede, provided that the restrictions set forth in
this paragraph shall apply
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only to customers or prospects of Ganymede, HomeCom or its subsidiaries or
affiliates, or representatives of customers or prospects of Ganymede, HomeCom or
its subsidiaries or affiliates, with which Employee had substantial contact
during such two (2) year period. The actions prohibited by this paragraph shall
not be engaged in by Employee directly or indirectly, whether as director,
officer, manager, salesperson, agent, technical support, sales or service
representative, developer, or otherwise. As used herein, "Material Contact"
means contact between Employee and each customer or immediate prospect (A) with
whom Employee dealt; (B) whose dealings with Ganymede, HomeCom or its
subsidiaries or affiliates were coordinated or supervised by Employee; (C) about
whom Employee obtained Confidential Information in the ordinary course of
business as a result of Employee's association with Ganymede, HomeCom or its
subsidiaries or affiliates; or (D) who receives services provided by Ganymede,
HomeCom or its subsidiaries or affiliates, the sale or provision of which
results or resulted in compensation, commissions or earnings for Employee, in
each of cases (A) through (D) within two years prior to the date of Employee's
termination of employment. This section does not preclude the Employee to engage
in social contact or interaction with any of these entities or parties, as long
as the Employee is interacting with the intention not to solicit competing
business.
8. Non-Competition. Employee agrees that during the term of Employee's
employment Employee and during the Non-Solicitation Period shall not, on
Employee's own behalf or on behalf of any person, firm, partnership,
association, corporation or business organization, entity or enterprise, engage
in any business involving, web development consulting to the financial services
industry. Employee also agrees that during the term of the Non-Solicitation
Period, Employee shall not, in any place in which Ganymede, HomeCom or its
subsidiaries or affiliates does business, on Employee's own behalf of on behalf
of any person, firm, partnership, association, corporation or business
organization, entity or enterprise, engage in any business involving web
development consulting to the financial services industry.
The actions prohibited by this paragraph shall not be engaged in by
Employee directly or indirectly, whether as officer, director, manager,
salesperson, agent, technical support, sales or service representative,
developer, or otherwise. Employee acknowledges that Ganymede provides products
and services to customers throughout the United States given the global scope of
the internet and that a more limited territorial restriction on the
non-competition provisions of this paragraph would not adequately protect the
legitimate interests of Ganymede, HomeCom or its subsidiaries or affiliates.
Notwithstanding anything contained herein to the contrary, nothing shall prevent
the Employee from having a financial interest in a publicly-traded competitor of
Ganymede, HomeCom or its subsidiaries or affiliates if that interest is in the
form of ownership of less than five (5%) percent of the outstanding stock of
such company.
9. Employee Non-Solicitation. During the Non-Solicitation Period,
Employee agrees that Employee shall not call upon, solicit, recruit, or assist
others in calling upon, recruiting or soliciting any person who is an employee
of Ganymede, HomeCom or its subsidiaries or affiliates, who is or was an
employee of Ganymede, HomeCom or its subsidiaries or affiliates within 12 months
of such solicitation or recruitment for the purpose of having such person
terminate his employment with Ganymede, HomeCom or its subsidiaries or
affiliates or work in any other corporation, association, entity, or business.
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10. Equitable Relief. The parties to this Agreement acknowledge that a
breach by Employee of any of the terms or conditions of this Agreement will
result in irrevocable harm to Ganymede and that the remedies at law for such
breach may not adequately compensate Ganymede for damages suffered. Accordingly,
Employee agrees that in the event of such breach, Ganymede, HomeCom or its
subsidiaries or affiliates shall be entitled to injunctive relief or such other
equitable remedy as a court of competent jurisdiction may provide. Nothing
contained herein will be construed to limit Ganymede's right to any remedies at
law or equity, including the recovery of damages for breach of this Agreement.
11. Confidential Information.
(a) Ganymede, HomeCom or its subsidiaries or affiliates may disclose to
Employee certain Trade Secrets and Confidential Information (defined below).
Employee acknowledges and agrees that the Trade Secrets and Confidential
Information are the sole and exclusive property of Ganymede, HomeCom or its
subsidiaries or affiliates (or a third party providing such information to
Ganymede, HomeCom or its subsidiaries or affiliates) and that Ganymede, HomeCom
or its subsidiaries or affiliates or such third party owns all worldwide rights
therein under patent, copyright, trade secret, confidential information, or
other property right. Employee acknowledges and agrees that the disclosure of
the Trade Secrets and Confidential Information to Employee does not confer upon
Employee any license, interest or rights of any kind in or to the Trade Secrets
or Confidential Information. Employee may use the Trade Secrets and Confidential
Information solely for the benefit of Ganymede, HomeCom or its subsidiaries or
affiliates while Employee is employed or retained by Ganymede. Except in the
performance of services for Ganymede, Employee will hold in confidence and not
reproduce, distribute, transmit, reverse engineer, decompile, disassemble, or
transfer, directly or indirectly, in any form, by any means, or for any purpose,
the Trade Secrets or Confidential Information or any portion thereof. Employee
agrees to return to Ganymede, upon request by Ganymede, the Trade Secrets and
Confidential Information and all materials relating thereto.
(b) Employee's obligations under this Agreement with regard to the
Trade Secrets shall remain in effect for as long as such information shall
remain a trade secret under applicable law. Employee acknowledges that its
obligations with regard to the Confidential Information shall remain in effect
while Employee is employed or retained by Ganymede and for two (2) years
thereafter. As used herein, "Trade Secrets" means the trade secrets of Ganymede
and its subsidiaries and affiliates as defined in the Georgia Trade Secrets Act.
As used herein, "Confidential Information" means information of Ganymede, other
than Trade Secrets, HomeCom and its subsidiaries and affiliates, its licensors,
vendors, suppliers, customers or prospective licensors, vendors, suppliers or
customers, that is of value to its owner and is treated as confidential,
including, but not limited to, technical or non-technical data, formulas,
patterns, compilations, programs, devices, methods, techniques, drawings,
processes, financial data, financial plans, product plans, or a list of actual
or potential customers or suppliers, future business plans, licensing
strategies, advertising campaigns, information regarding executives and
employees, and the terms and conditions of this Agreement.
(c ) Employee acknowledges that existing or prospective customers of
Ganymede may be companies which are publicly traded and subject to various rules
and regulations of the
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Securities and Exchange Commission. Employee acknowledges that HomeCom has a
policy that no one associated with HomeCom may trade in securities of any
customer of HomeCom or Ganymede itself based on material, nonpublic information
concerning the customer. Additionally, HomeCom expressly forbids the
unauthorized disclosure of any nonpublic information acquired by anyone
associated with HomeCom relating to a customer of HomeCom. Employee shall notify
HomeCom prior to trading the securities of any customer or Securities of
HomeCom.
(d) Nothing contained herein shall be deemed to waive any of Ganymede's
rights or remedies under any applicable trade secrets acts, including, but not
limited to, the Georgia Trade Secrets Act.
(e) Upon termination of employment for any reason, Employee shall
return immediately to Ganymede all documents, property, and other records of
Ganymede, and all copies thereof, within Employee's possession, custody or
control, including but not limited to any materials containing any Trade Secrets
or Confidential Information (as defined below) or any portion thereof.
12. Ownership. For purposes of this Agreement, "Ganymede Work Product"
shall mean the data, materials, documentation, computer programs, inventions
(whether or not patentable), and all 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, as a result of Employee's duties while employed with Ganymede as of
January 18, 1995, and that (i) relate to the present or documented planned
business, research, developments, tests, products, work or activities of
Ganymede, HomeCom or its subsidiaries or affiliates or (ii) result from or are
suggested by any work Employee may do for Ganymede. All Ganymede Work Product
shall be considered work made for hire by the Employee and owned by Ganymede. If
any of the Ganymede Work Product may not, by operation of the law, be considered
work made for hire by Employee for Ganymede, or if ownership of all right,
title, and interest of the intellectual property rights therein shall not
otherwise vest exclusively in Ganymede, Employee hereby assigns to Ganymede, and
upon the future creation thereof automatically assigns to Ganymede, without
further consideration, the ownership of all Ganymede Work Product. Ganymede
shall have the right to obtain and hold in its own name copyrights,
registrations, and any other protection available in the Ganymede Work Product.
Employee agrees to perform, during Employee's employment, such further acts as
may be necessary or desirable to transfer, protect, and defend Ganymede's
ownership of the Ganymede Work Product that are reasonably requested by
Ganymede. All data, materials, documentation, computer programs, inventions
(whether or not patentable), and all works of authorship, including all
worldwide rights therein under patent, copyright, or other property right,
created or developed in whole or in part by Employee outside his scope of
employment by Ganymede, belongs exclusively to Employee.
13. Termination of Employment.
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(a) The Employment Term will terminate upon the Employee's termination
or upon the effective date specified in a letter of resignation from Employee to
the Board of Directors of Ganymede. This agreement shall only be renewed upon
the mutual agreement of the Parties.
(b) The Employment Term may also be terminated by Ganymede immediately
upon prior written notice to the Employee upon the occurrence of any of the
following:
(i) the commission by the Employee of any act involving moral
turpitude detrimental to the interests of Ganymede or
Ganymede; or
(ii) violation of Title VII of the Civil Rights Act of 1964 or
any other Federal or State Civil Rights statutes or
regulations; or
(iii) the conviction of the Employee of a felony.
(c) The Employment Term may also be terminated by Ganymede upon thirty
(30) days prior written notice to the Employee upon the occurrence of any of the
following:
(i) the willful damage directly caused by the Employee to
Ganymede; or
(ii) Employee's gross negligence in connection with the
performance of his duties, including but not limited to
insubordination, inability to perform mutually agreed to
delegated tasks, inability to meet mutually agreed to
established deadlines.
(d) Upon termination of the Employee's employment under subsections
13(a), (b), or (c) above, the parties hereto will be relieved of any further
obligations hereunder from and after the effective date of such termination,
except for any obligations set forth in Sections 7, 8, 9, and 10, 14. Upon
termination of the Employee's employment for any reason, the Employee agrees to
resign, at the time of termination, from all positions with Ganymede, HomeCom or
its subsidiaries or affiliates, including but not limited to, any Officer and
Director positions with HomeCom or Ganymede.
14. Effect of Termination. An Employee may terminate their employment
with Buyer within the two (2) year period listed herein without penalty if the
cause of the termination is a health related problem, mental or physical, that
results in Employee's inability to perform, either physically or mentally, the
duties associated with Employee's title and position with Ganymede, as
delineated by Ganymede. Employee must provide Ganymede written, signed evidence
from Employee's doctor describing the health related problem and describing how
the problem will result in Employee's inability to fulfill his/her duties of
employment with
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Ganymede. An Employee may terminate his employment with Ganymede within the
two year period listed herein without penalty if the cause of the termination
is due to 1) change of Ganymede/HomeCom control, 2) Employee is required to
relocate to a city outside the Chicago land area, or 3) There is a material
change of job duties. Notwithstanding the above, if Employee terminates his
employment with Ganymede for any other reason than for cause as defined above
in Section 13, within the two year period listed herein, the terminating
Employee shall be required to return a total of twenty percent (20%) of
Ganymede stock acquired by terminating Employee diminished on a pro rata basis
based on the time served by the employee within the two (2) year period
pursuant to this transaction, distributed as follows:
|_| Ten percent (10%) of the stock or the equivalent market value of ten
percent (10%) of the shares (valued at the date of closing) in cash shall
be returned to Ganymede; and
|_| Ten percent (10%) of the stock or the equivalent market value of ten
percent (10%) of the shares (valued at the date of closing) in cash shall
be distributed evenly to the remaining Partners who remain employed by
Ganymede. For the purposes of this agreement, the term "Partners" refers to
Xxxxxxx X. Xxx, Xxxx X. Xxxxxx, and Xxx Xxxxxxx, collectively. If, at the
time of termination, none of the Partners remain employed with Ganymede,
this ten percent (10%) shall revert back to HomeCom.
|_| When the termination date is fixed, the twenty percent (20%) will be
calculated, and the amount will be reduced based on subtracting a pro rata
percentage of time served by the Employee. Employee will only be penalized
for the remaining time not fulfilled for the two (2) year period.
15. Death of the Employee. If the Employee dies during the Employment
Term, (a) this Agreement shall terminate, and (b) Ganymede will pay to the
Employee's estate the Employee's Salary for thirty (30) days after the death
occurs. Ganymede and HomeCom benefit plans in which Employee was a participant
prior to his death shall vest in full upon his death and be exercisable by
Employee's estate, subject to the terms of such benefit plans.
16. Compliance with Securities Laws. Employee agrees to comply with all
applicable state and federal securities laws, rules, and regulations, as may be
in effect from time to time.
17. Governing Law. The terms of this Agreement shall be governed by the
laws of the State of Illinois. Venue shall lie in the Circuit Court of Xxxx
County, Illinois, or the United States District Court for the Northern District
of Illinois, in Chicago, Illinois. The parties hereto acknowledge that such
Court has the jurisdiction to interpret and enforce the provisions of this
Agreement and the parties waive any and all objections which they may have as to
personal jurisdiction or venue in any of the above Courts.
18. Assignability. The Employee may not assign his interest in or
delegate his duties under this Agreement without prior approval.
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19. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of Ganymede.
20. Notices. All notices, demands and requests which may be given or
which are required to be given by either party to the other, and any exercise of
a right of termination provided by this Agreement, shall be in writing and shall
be deemed effective when either: (a) personally delivered to the intended
recipient; (2) sent by certified or registered mail, return receipt requested,
addressed to the intended recipient at the address specified below; (3)
delivered in person to the address set forth below for the party to which the
notice was given; Notices shall be effective on the date of delivery or receipt,
of, if delivery is not accepted, on the earlier of the date that delivery is
refused or three (3) days after the date the notice is mailed. For purposes of
this Paragraph, the addresses of the parties for all notices are as follows
(unless changes by similar notice in writing are given by the particular person
whose address is to be changed):
If to the Employee, to 000 Xxxx, Xxxx Xxxxx, Xxxxxxxx 00000;
If to Ganymede, to Fourteen Xxxxxxxx Xxxxxx, Xxxxx 000, 0000
Xxxxxxxx Xxxx, Xxxxxxx, XX 00000.
21. Entire Agreement; Modification. This Agreement constitutes the
entire agreement of the parties hereto with respect to the subject matter hereof
and may not be modified or amended in any way except in writing by the parties
hereto.
22. Waiver. No waiver by Ganymede of any breach by the Employee of this
Agreement shall be construed to be a waiver as to succeeding breaches.
23. Severability. In any provision or part of any provision of this
Agreement is held invalid or unenforceable by a court of competent jurisdiction,
such holding shall not affect the enforceability of any other provisions or
parts thereof, and all other provisions and parts thereof shall continue in full
force and effect.
24. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
or as of the date and year first above written.
COMPANY:
GANYMEDE CORPORATION
By: /s/ Xxxxxx Xxx
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Name: Xxxxxx Xxx
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Title:
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EMPLOYEE:
/s/ Xxxx X. Xxxxxx
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Exhibit A
Employment Agreement
of Xxxx Xxxxxx
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Employee shall:
1. Supervise the technical aspects of migrating the Ganymede data center
operations to HomeCom and/or transfer to a third party as decided by
Ganymede and HomeCom.
2. Assist in the recruiting of technical professionals qualified in the
analysis, design, and/or development of software for the financial
industry.
3. Recommend and/or specify technologies and products suitable for use in
products developed by Ganymede and/or HomeCom.
4. Advise and assist development teams on the technical aspects of interfacing
a brokerage intranet application to common exchange communication
interfaces.
5. Other services as requested by Ganymede or HomeCom.
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