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Ex - 10.9
EPRISE CORPORATION
AT-WILL EMPLOYMENT AGREEMENT
Eprise Corporation, a Delaware corporation ("Company"), offers employment,
and Jonathan B. Radoff ("Employee") accepts employment, upon the terms and
conditions as follows:
1. Employee will have the title of Chairman and Chief Technology Officer,
and will perform such duties as are commensurate with such positions.
2. Employee's salary shall be $140,000 per annum, subject to such
periodic increases as may be determined by the Compensation Committee and
approved by the Board of Directors.
3. The first date of Employee's employment was September 26, 1992. This
Agreement is effective as of December 17, 1997.
4. During the term of this Agreement, Company shall permit Employee to
participate in any of its fringe benefit plans in accordance with the respective
provisions thereof from time to time in effect. A description of the current
benefit plans and requirements for participating in them is available upon
request.
5. Should the Company move its principal headquarters during the term of
this Agreement to a location which is 25 miles or more from its current
location, the Company will reimburse Employee for all reasonable expenses
incurred in connection with Employee relocating his residence to a more
convenient location.
6. Employee shall have a workspace, facilities and services that are
suitable to the position and appropriate for the performance of Employee's
duties.
7. Company shall reimburse Employee for all reasonable expenses incurred,
pursuant to Company's specified guidelines, in the performance of Employee's
business, e.g. entertainment, travel, etc. Employee will be reimbursed upon
submission of an itemized account of such expenditures with receipts where
practicable.
8. Employee understands that he is an at-will employee and that the
Company may terminate his employment at any time, for any reason or for no
reason at all, but only by the vote of at least 5/7ths of the Board of
Directors.
9. If Employee is terminated without Cause, as such term is defined
below, he shall be entitled to one (1) year of severance pay, payable in 12
equal monthly installments, in an aggregate amount equal to Employee's annual
base salary at the time of termination. For the purposes of this Section 9,
"Cause" shall mean that the Employee has (a) in the reasonable and good faith
determination of the majority of the Board of Directors, engaged in gross
negligence relative to the affairs of the Company, or (b) been convicted of a
felony. Prior to terminating the
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Employee for Cause, the Company shall first provide Employee with notice and the
opportunity to be heard.
10. Any notice required to be given hereunder shall be either: (i)
personally delivered, or (ii) sent by U.S. Postal Service, postage pre-paid,
certified mail, return receipt requested to Company at the place of employment
and to the Employee at the last residence address given to and on file with
Company.
11. During the course of employment, Employee will become aware of certain
methods, practices and procedures with which Company conducts its business,
including but not limited to marketing strategies, administrative practices,
sales data, information about customers, technological innovations, software
development and software mechanics all of which Company and Employee agree are
proprietary information and as such are trade secrets.
12. Employee will not at any time, either during his employment or
thereafter, divulge, furnish or make available, either directly or indirectly,
to any person, firm, corporation or other entity any proprietary information
used by Company. Employee agrees that all such matters and information shall be
kept strictly and absolutely confidential.
13. Upon the cessation of his employment, irrespective of the time, manner
or reason of termination, Employee will immediately surrender and deliver to
Company all lists, books, records, memoranda and data of every kind relating to
all proprietary information and all property belonging to Company.
14. Employee agrees that all inventions, computer programs and products
created by Employee either for use by Company or which could be used by Company
in furtherance of Company's business activity, which are created or conceived
during the course of employment by Company, shall be considered as Works Made
For Hire and all rights to said Works shall and do vest in Company.
15. Employee further agrees that said Works are proprietary information
not to be divulged, furnished, or made available, either directly or indirectly,
to any person, firm or corporation or any other entity.
16. As a material inducement to the Company to employ Employee, and in
order to protect the Company's proprietary information and good will, Employee
agrees to the following stipulations:
(i) For a period of twelve (12) months after termination of employment
with the Company or its present or future affiliates for any reason,
whether with or without cause, Employee will not directly or indirectly
solicit or accept business relating in any manner to Competing Products or
to products, processes or services of the Company from any of the customers
or accounts of the Company with which Employee had any contact as a result
of his employment, nor will Employee divert any such business from the
Company.
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(ii) For a period of twelve (12) months after termination of employment
with the Company or its present or future affiliates for any reason,
whether with or without cause, Employee will not render services, directly
or indirectly, as an employee, consultant or otherwise, to any Competing
Organization in connection with research on or the acquisition,
development, production, distribution, marketing, or providing of any
Competing Product.
(iii) For a period of twelve (12) months after termination of employment
with the Company or its present or future affiliates for any reason,
whether with or without cause, Employee will not recruit or otherwise
solicit or induce employees or consultants of the Company or its present or
future affiliates to terminate their employment with, or otherwise cease
their relationships with, the Company or any such affiliates.
(iv) For a period of twelve (12) months after termination of employment
with the Company or its present or future affiliates for any reason,
whether with or without cause, Employee will not directly or indirectly
induce or attempt to induce a customer, prospective customer, supplier,
agent, vendor, contractor, subcontractor, developer, employee or consultant
to terminate or not enter into any contract with Company or its present or
future affiliates.
Employee agrees that the restrictions set forth in this Section are fair
and reasonable and are reasonably required for the protection of the interests
of the Company. However, should an arbitrator or court nonetheless determine at
a later date that such restrictions are unreasonable in light of the
circumstances as they then exist, then Employee agrees that this Section shall
be construed in such a manner as to impose on Employee such restrictions as may
then be reasonable and sufficient to assure Company of the intended benefits of
this Section.
17. For the purposes of Section 16:
(i) "Competing Product" means any product, process, or service of any
person or organization other than the Company, in existence or under
development, (A) which is identical to, substantially the same as, or an
adequate substitute for any product, process, or service of the Company, in
existence or under development, and (B) which is (or could reasonably be
anticipated to be) marked or distributed in such a manner and in such a
geographic area as to actually compete with such product, process or
service of the Company.
(ii) "Competing Organization" means any person or organization, including
Employee, engaged in, or about to become engaged in, research on or the
acquisition, development, production, distribution, marketing, or providing
of a Competing Product.
18. Employee acknowledges that a breach of any of the provisions of this
Agreement may result in continuing and irreparable damages to Company for which
there may be no adequate remedy at law and that Company in addition to all other
relief available to it shall be entitled to the issuance of an injunction
restraining Employee from committing or continuing any breach of this Agreement.
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19. A waiver of a breach of any provision of this Employment Agreement
shall not operate or be construed as a waiver of any subsequent breach. The
terms of this Agreement may be amended only by a writing signed by both of the
parties hereto.
20. The services of Employee are personal and unique and therefore
Employee may not assign this Employment Agreement nor delegate the duties and
obligations hereunder except in the normal course of business.
21. This Employment Agreement contains the entire understanding of the
parties, except as may be set forth in writing signed by the party against whom
enforcement may be sought, simultaneously with or subsequent to the execution of
this Employment Agreement. Employee agrees and understands that Company will,
from time to time, announce certain policies which it may publish in the form of
an Employee Handbook or similar document, and that such policies shall not act
to amend this agreement and shall exist only as a general guideline under which
management intends to operate.
22. If any provision of this Agreement shall be determined, by a court
having jurisdiction, to be invalid, or illegal or unenforceable, the remainder
of this Agreement shall not be affected but shall continue in full force and
effect as though such invalid, illegal or unenforceable provision were not
originally a part of this Agreement.
23. This Agreement shall be construed in accordance with and governed by
the laws of the Commonwealth of Massachusetts, irrespective of the fact that a
party hereto may not be a resident thereof.
INTENDING TO BE LEGALLY BOUND, the parties have executed this Employment
Agreement as of the date below written.
Date: December 17, 1997
BY: J.A. Forgione
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(Eprise Corporation)
BY: J. Radoff
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(Employee)
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Social Security Number
508-370-9262
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Home Phone Number
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