EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of October
31, 1994 by and between William Muenster ("Employee") and GeoSystems Global
Corporation, a Delaware corporation (the "Company").
RECITALS
A. The Company desires to have Employee's active services as Chief
Operating Officer of the Company for the period set forth in this Agreement.
B. The Company and Employee desire to enter into an Employment Agreement on
the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and in consideration of Employee's continued employment by the Company, the
parties hereto agree as follows:
1. Employment. The Company agrees to employ Employee and Employee agrees to
serve the Company, upon the terms and conditions hereinafter set forth.
Employee agrees that this Agreement shall replace and supersede all other
agreements relating to the employment of Employee by the Company or R.R.
Donnelley & Sons Company ("Donnelley") entered into prior to the date hereof
between Employee and either the Company or Donnelley.
2. Duties. Employee agrees that he/she will serve the Company faithfully,
diligently and to the best of his/her ability during the Employment Term and
that he/she will devote his/her full-time efforts and attention to the business
of the Company, excluding reasonable vacation and sick leave in accordance with
Company policies. In the course of Employee's employment, Employee shall perform
the duties of Chief Operating Officer of the Company under the direction of the
Company's President.
3. Compensation. As compensation for the services rendered by Employee
under this Agreement, the Company shall pay to Employee a base salary of $6,875
per month ("Base Salary"), payable to Employee in equal bimonthly installments
during the Employment Term, subject to annual adjustments by the Board of
Directors in its sole discretion.
4. Bonus. In addition to his/her Base Salary, Employee shall be entitled
(i) to a bonus payable immediately in the amount of $10,000 (less applicable
withholding) and (ii) to participate in the Company's annual bonus program
hereafter, with the first bonus payable for and after the year ended December
31, 1995. The annual target bonus shall be payable as
follows: (i) in the event that the Company achieves its annual budget (as
determined by management and the Board at the beginning of each fiscal year),
Employee shall be entitled to a bonus of 15% of base salary, and (ii) in the
event that the Company achieves further targets established by the Board,
Employee shall be entitled to an additional bonus of up to 15 % of base salary.
Employee agrees that to the extent Employee may from time to time be indebted to
the Company in connection with the purchase of securities of the Company, then
the lesser of (i) one-fifth of the aggregate sum if the initial principal
amounts of each such indebtedness to the Company, and (ii) one-half of the
annual bonus, (after applicable withholding) payable to Employee in any year
shall be applied immediately upon receipt by Employee to the payment of
principal and interest on such indebtedness.
5. Employee Benefits.
(a) Medical and Insurance Benefits. Employee will be entitled to receive
all employee benefits provided to employees of the Company and its subsidiaries
generally from time to time, including medical and dental (which plans will be
comparable in coverage and benefits to medical and dental plans maintained by
companies of similar size to the Company and in a similar geographic area), life
insurance and long-tern disability, so long as and to the extent the same exist;
provided, that in respect to each such plan Employee is otherwise eligible and
insurable at a commercially reasonable rate in accordance with the terms of such
plans.
(b) Vacation, Sick Leave and Holidays. Employee shall be entitled to
vacation, sick leave and vacation in accordance with the policies of the Company
and its subsidiaries as they exist from time to time, such policies to be
determined by the Board in good faith subsequent to the date hereof. Vacation
which is not used during any calendar year will not roll over to the following
year.
(c) 401(k). Employee shall be entitled to participate in a contributory
401(k) plan to be adopted by the Company as soon as is practicable (in the
determination of the Board acting in good faith) subsequent to the date hereof.
6. Employee Stock. Employee will be eligible to be granted stock options
under a stock option plan to be adopted by the Company (the "Plan"), upon the
approval of the Company's Board of Directors, in accordance with the grants
provided for in section 5.7 of the Stock Purchase Agreement dated October 31,
1994 by and among the Company, Donnelley, Trident Capital Partners Fund-I, L.P.,
Trident Capital Partners Fund-,I C.V., and various other parties. These options
will vest in five equal annual increments (assuming continuous service as an
employee of the Company), will be qualified as incentive stock options, will be
exercisable for shares of the Company's common stock at a purchase price of
$0.10 per share and will have a term of ten years. Employee understands that
this vesting schedule is not a guarantee of continued employment. The terms of
the option will be set forth with specificity in an option agreement and the
Plan.
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7. Severance Benefits.
(a) Employee's employment shall be "at will." Either the Company or
Employee may terminate this Agreement and Employee's employment at any time,
with or without Business Reasons (as defined in Section 8(a) below), in its or
his/her sole discretion, upon two (2) weeks' written notice of termination,
provided that the Company may terminate the Agreement immediately upon notice to
Employee for Business Reasons as specified in Section 8(a).
(b) If the Company terminates Employee pursuant to this paragraph
involuntarily and without Business Reasons, or if Employee voluntarily
terminates his/her employment more than one year from the date hereof, then
Employee shall be entitled to the following: (i) salary and vacation accrued
through the Termination Date, (ii) any bonus declared with respect to Employee
prior to the Termination Date, to the extent unpaid, (iii) a severance payment
or payments in an aggregate amount equal to six months of base salary, which
severance shall be payable at the Company's option in one lump sum or in equal
monthly installments, (iv) to the extent COBRA shall be applicable to the
Company, continuation of group health plan benefits for a period of one (1) year
following the Termination Date if Employee makes the appropriate conversion and
payments, and (v) no further severance benefits or other compensation. All such
payments shall be subject to applicable tax withholding. At its option, the
Company may pay Employee two (2) weeks of additional compensation in lieu of
giving Employee the two (2) weeks notice as provided above or waiting two weeks
prior to accepting Employee's resignation. Notwithstanding the foregoing,
however, the Company shall not be required to pay the salary specified above for
any period following the Termination Date if Employee violates the
non-competition or non-solicitation agreements set forth in Section 13 hereof
during the period following the Termination Date.
(c) The Company may also terminate Employee at any time for Business
Reasons. If (i) Employee voluntarily terminates his/her employment within one
year of the date hereof, (ii) Employee's employment is terminated due to death
or Disability, or (iii) Employee is terminated involuntarily for Business
Reasons, then Employee shall be entitled to receive the following: (w) salary
and accrued vacation through the Termination Date only, (x) any bonus declared
with respect to Employee prior to the Termination Date, to the extent unpaid,
(y) to the extent COBRA shall be applicable to the Company, continuation of
group health plan benefits for a period of one (1) year following the
Termination Date if Employee makes the appropriate conversion and payments, and
(z) no further severance benefits or other compensation. All such payments shall
be subject to applicable tax withholding.
(d) The provisions of this Section 7 are intended to be and are exclusive
and in lieu of any other rights or remedies to which Employee or the Company may
otherwise be entitled, either at law, tort or contract, in equity, or under this
Agreement, in the event of any termination of Employee's employment. Employee
shall be entitled to no benefits, compensation
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or other payments or rights upon termination of employment other than those
benefits expressly set forth in paragraph (b) or (c) of this Section 7,
whichever shall be applicable.
8. Definition of Terms. The following terms referred to in this Agreement
shall have the following meanings:
(a) Business Reasons. "Business Reasons" means gross negligence, willful
misconduct or other willful malfeasance by Employee in the performance of
his/her duties, Employee's commission of a felony or other offense involving
moral turpitude, or Employee's material breach of this Agreement, including
without limitation any material breach of Sections 10 through 13 hereof,
inclusive.
(b) Disability. "Disability" shall mean that Employee has been unable to
perform his/her duties as an employee as the result of his/her incapacity due to
physical or mental illness, and such inability, at least 26 weeks after its
commencement, is determined to be total and permanent by a physician selected by
the Company or its insurers and acceptable to Employee or Employee's legal
representative (such Agreement as to acceptability not to be unreasonably
withheld). Termination resulting from Disability may only be effected after at
least thirty (30) days written notice by the Company of its intention to
terminate Employee's employment. In the event that Employee resumes the
performance of substantially all of his/her duties hereunder before the
termination of his/her employment becomes effective, the notice of intent to
terminate shall automatically be deemed to have been revoked.
(c) Termination Date. "Termination Date" shall mean (i) if this Agreement
is terminated on account of death, the date of death; (ii) if this Agreement is
terminated for Disability, the date specified in Section 8(b); (iii) if this
Agreement is terminated by the Company, two weeks following the date on which a
notice of termination is given to Employee, as provided in Section 7(a) (unless
Employee is being terminated for Business reasons, in which case the Termination
Date shall be the date on which the notice of termination is delivered to
Employee); (iv) if the Agreement is terminated by Employee, two weeks following
the date on which Employee delivers the notice of termination to the Company; or
(v) if this Agreement expires by its terms, then the last day of the term of
this Agreement.
9. Successors.
(a) Company's Successors. Any successor to the Company (whether direct or
indirect and whether by purchase, lease, merger, consolidation, liquidation or
otherwise) to all or substantially all of the Company's business and/or assets
shall be entitled to assume the rights and obligations of the Company under this
Agreement and shall agree to perform the Company's obligations under this
Agreement in the same manner and to the same extent as the Company would be
required to perform such obligations in the absence of a succession. For all
purposes under this Agreement, the term "Company" shall include any successor to
the Company's
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business and/or assets which executes and delivers the assumption agreement
described in this subsection (a) or which becomes bound by the terms of this
Agreement by operation of law.
(b) Employee's Successors. The terms of this Agreement and all rights of
Employee hereunder shall inure to the benefit of, and be enforceable by,
Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
10. Confidential Information.
(a) Employee acknowledges that the Confidential Information (as defined
below) relating to the business of the Company and its subsidiaries which
Employee has obtained or will obtain during the course of his/her association
with the Company and subsidiaries and his/her performance under this Agreement
are the property of the Company and its subsidiaries. Employee agrees that
he/she will not disclose or use at any time, either during or after the
Employment period, any Confidential Information without the written consent of
the Board of Directors of the Company. Employee agrees to deliver to the Company
at the end of the Employment period, or at any other time that the Company may
request, all memoranda, notes, plans, records, documentation and other materials
(and copies thereof) containing Confidential Information relating to the
business of the Company and its subsidiaries, no matter where such material is
located and no matter what form the material may be in, which Employee may then
possess or have under his/her control. If requested by the Company, Employee
shall provide to the Company written confirmation that all such materials have
been delivered to the Company or have been destroyed. Employee shall take all
appropriate steps to safeguard Confidential Information and to protect it
against disclosure, misuse, espionage, loss and theft.
(b) "Confidential Information" shall mean information which is not
generally known to the public and which is used, developed, or obtained by the
Company or its subsidiaries relating to the businesses of any of the Company and
its subsidiaries or the business of any customer thereof including, but not
limited to: products or services; fees, costs and pricing structure; designs;
analyses; formulae; drawings; photographs; reports; computer software, including
operating systems, applications, program listings, flow charts, manuals and
documentation; data bases; accounting and business methods; inventions and new
developments and methods, whether patentable or unpatentable and whether or not
reduced to practice; all copyrightable works; the customers of any of the
Company and its subsidiaries and the Confidential Information of any customer
thereof; and all similar and related information in whatever form. Confidential
Information shall not include any information which (i) was rightfully known by
Employee prior to the Employment Period; (ii) is publicly disclosed by law or in
response to an order of a court or governmental agency; (iii) becomes publicly
available through no fault of Employee or (iv) has been published in a form
generally available to the public prior to the date upon which Employee proposes
to disclose such information. Information shall not be deemed to have been
published merely because individual portions of the information have been
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separately published, but only if all the material features comprising such
information have been published in combination.
11. Inventions and Patents. In the event that Employee, as a part of
Employee's activities on behalf of the Company, generates, authors or
contributes to any invention, new development or method, whether or not
patentable and whether or not reduced to practice, any copyrightable work, any
trade secret, any other Confidential Information, or any information that gives
any of the Company and its subsidiaries an advantage over any competitor, or
similar or related developments or information related to the present or future
business of any of the Company and its subsidiaries (collectively "Developments
and Information"), Employee acknowledges that all Developments and Information
are the exclusive property of the Company. Employee hereby assigns to the
Company, its nominees, successors or assigns, all rights, title and interest to
Developments and Information. Employee shall cooperate with the Company's Board
of Directors to protect the interests of the Company and its subsidiaries in
Developments and Information. Employee shall execute and file any document
related to any Developments and Information requested by the Company's Board of
Directors including applications, powers of attorney, assignments or other
instruments which the Company's Board of Directors deems necessary to apply for
any patent, copyright or other proprietary right in any and all countries or to
convey any right, title or interest therein to any of the Company's nominees,
successors or assigns.
12. No Conflicts.
(a) Employee agrees that in his/her individual capacity he/she will not
enter into any agreement, arrangement or understanding, whether written or oral,
with any supplier, contractor, distributor, wholesaler, sales representative,
representative group or customer, relating to the business of the Company or any
of its subsidiaries, without the express written consent of the Board of
Directors of the Company.
(b) As long as Employee is employed by the Company or any of its
subsidiaries, Employee agrees that he/she will not, except with the express
written consent of the Board of Directors of the Company, become engaged in,
render services for, or permit his/her name to be used in connection with, any
business other than the business of the Company, any of its subsidiaries or any
corporation or partnership in which the Company or any of its subsidiaries have
an equity interest.
13. Non-Competition and Non-Solicitation Agreements. Employee agrees with
the Company as follows:
(a) Until one (1) year following the Termination Date, Employee shall not
without the prior written approval of the Company, directly or indirectly, under
any circumstances whatsoever (i) own, manage, operate, control or participate in
the ownership,
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management, or control of, or be connected with, whether as a partner,
stockholder, director, officer or principal of any business that is in
competition with the business of the Company as of the date of such termination
(a "Competing Business") or (ii) be employed or retained as an agent, employee
or consultant or in any other relation or capacity whatsoever by a Competing
Business; provided that if Employee is terminated by the Company without
Business Reasons then the period of non-compete provided herein shall terminate
six (6) months following the termination date, except to the extent the Company
shall elect to extend the non-compete period to up to twelve (12) months
following the termination date by written notice to Employee not more than 90
days following the date of termination. In the event of such election, the
Company shall pay to Employee one month of base salary for each month the
Company continues to enforce this noncompetition restriction after the first six
months of such restriction, up to a maximum of six additional months of
non-compete payments.
(b) In addition, until two (2) years following the Termination Date,
Employee shall not, directly or indirectly, solicit the employment or engagement
of the consulting or other services of any person who shall then be employed by
the Company or who shall have been employed by the Company at any time within
the then previous twelve (12) months.
(c) Employee acknowledges that compliance with the covenants contained in
this Section 13 and in Section 10 hereof are necessary to protect the value of
the business of the Company and that a breach of any such covenant would result
in irreparable and continuing damage for which there would be no adequate remedy
at law. Accordingly, Employee agrees that in the event of any breach of said any
such covenant, the Company shall be entitled to injunctive relief and to such
other and further relief as is proper under the circumstances.
(d) Employee agrees that these restrictions on competition and solicitation
shall be deemed to be a series of separate covenants not-to-compete and a series
of separate non-solicitation covenants for each month within the specified
periods, separate covenants not-to-compete and non-solicitation covenants for
each state within the United States and each country in the world, separate
covenants not-to-compete for each area of competition, and separate
non-solicitation covenants with respect to each employee of the Company. If any
court of competent jurisdiction shall determine any of the foregoing covenants
to be unenforceable with respect to the term thereof or the scope of the subject
matter or geography covered thereby, such remaining covenants shall nonetheless
be enforceable by such court against such other party or parties or upon such
maximum shorter term or within such maximum lesser scope as may be determined by
the court to be enforceable.
14. Miscellaneous Provisions.
(a) Notice. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given (i)
when personally delivered, (ii) three (3) business days after deposit in U.S.
Mail, if mailed by U.S. registered or certified mail, return receipt requested,
or (iii) one business day after the date of deposit with
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Federal Express or similar overnight courier, freight prepaid. In the case of
Employee, notices shall be addressed to him/her for personal delivery at the
office or at the home address which he/she most recently communicated to the
Company in writing or if delivered by U.S. mail or courier, then to the home
address which he/she most recently communicated to the Company in writing. In
the case of the Company, notices shall be addressed to its corporate
headquarters, to the attention of its Corporate Secretary.
(b) Notice of Termination. Any termination by the Company or Employee shall
be communicated by a notice of termination to the other party hereto given in
accordance with paragraph (a) hereof. Such notice shall indicate the specific
termination provision in this Agreement relied upon.
(c) Waiver. No provision of this Agreement shall be modified, waived or
discharged unless the modification, waiver or discharge is agreed to in writing
and signed by Employee and by an authorized officer of the Company (other than
Employee). No waiver by either party of any breach of, or of compliance with,
any condition or provision of this Agreement by the other party shall be
considered a waiver of any other condition or provision or of the same condition
or provision at another time.
(d) Entire Agreement. This Agreement shall supersede any and all prior
agreements, representations or understandings (whether oral or written and
whether express or implied) between the parties with respect to the subject
matter hereof.
(e) Choice of Law. This Agreement will be governed and construed in
accordance with the laws of the State of New York as they apply to contracts
entered into and wholly to be performed within such state.
(f) Severability. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision hereof, which shall remain in full force and effect.
(g) Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in Philadelphia,
Pennsylvania, in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrator's award in
any court having jurisdiction. Punitive damages shall not be awarded.
(h) No Assignment of Benefits. The rights of any person to payments or
benefits under this Agreement shall not be made subject to option or assignment,
either by voluntary or involuntary assignment or by operation of law, including
(without limitation) bankruptcy, garnishment, attachment or other creditor's
process, and any action in violation of this subsection (h) shall be void.
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(i) Employment Taxes. All payments made pursuant to this Agreement will be
subject to withholding of applicable taxes.
(j) Assignment by Company. The Company may assign its rights under this
Agreement to an affiliate, and an affiliate may assign its rights under this
Agreement to another affiliate of the Company or to the Company. As used herein,
the term "Company" shall mean the Company and its subsidiaries.
(k) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together will constitute one
and the same instrument.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by its duly authorized officer, as of the day and year first
above written.
COMPANY: GEOSYSTEMS GLOBAL CORPORATION
By: /s/ Barry J. Glick
---------------------------------
Name: Barry J. Glick
Title: Pres.
EMPLOYEE: /s/ William Muenster
------------------------------------
Name:
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