Exhibit 10.17
FORM OF EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into
as of November 6, 1998, by and between COMPS INFOSYSTEMS, INC., a Delaware
corporation (the "Company"), and ____________________, an individual (the
"Executive").
RECITALS
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WHEREAS, the execution and delivery of this Agreement by the Company
and the Executive is a condition to the closing of that certain Asset Purchase
Agreement (the "Purchase Agreement") of even date herewith, by and among the
Company, the Executive, REALBID LLC, a California limited liability company, and
[Robert Potter] [Emmett DeMoss], an individual; and
WHEREAS, the Company and the Executive have determined that it is in
their respective best interests to enter into this Agreement on the terms and
conditions as set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and promises contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows (capitalized terms used herein and not
expressly defined herein shall have the meanings assigned such terms in the
Purchase Agreement):
1. EMPLOYMENT TERMS AND DUTIES
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1.1 Employment. The Company hereby employs the Executive, and the
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Executive hereby accepts employment by the Company, upon the terms and
conditions set forth in this Agreement.
1.2 Duties. The Company shall start a REALBID Division within the
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Company and shall locate the executive office of the REALBID Division in Marin
County and San Francisco County. The Executive shall serve as the Chairman of
the REALBID Division and as the Vice President of the Company, with such powers
and duties appropriate to those positions as may be provided in the Bylaws of
the Company, and as determined by the Board of Directors of the Company (the
"Board") from time to time. Such duties will include, without limitation,
planning, management, operations, sales and marketing, product development and
enhancement and overall supervision of the REALBID Division. During the term of
his employment hereunder, the Executive shall devote his full working time and
efforts to the performance of his duties to the Company and shall not be or
occupied with non-Company activities during his working time or otherwise
employed at any time during the term of this Agreement. The Executive shall use
his best efforts in the performance of his duties and the furtherance of the
interests of the Company. The Executive shall at all times discharge his duties
under the supervision and direction of the Chief Executive Officer of the
Company or his designee. The Executive will annually present a business plan,
and quarterly present revised two year projections of the same, to the Chief
Executive Officer.
1.3 Term. Subject to the provisions Section 1.5 below, the term of
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employment of the Executive under this Agreement shall commence on the date
hereof and terminate on January 1, 2003 (the "Employment Term"). Upon
termination of the Employment Term, the Executive's employment with the Company
and the Company's obligation to employ the Executive in any capacity shall cease
in any and all manner.
1.4 Compensation and Benefits.
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1.4.1 Base Salary. In consideration of the services rendered to the
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Company hereunder by the Executive and the Executive's covenants hereunder,
including but not limited to, his covenants under Sections 2 and 3 below, the
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Company shall, during the Employment Term, pay the Executive a salary at the
annual rate of Two Hundred Twenty-Five Thousand Dollars ($225,000) (the "Base
Salary"). The Base Salary shall be payable in accordance with the normal
payroll practices of the Company then in effect. The Base Salary and all other
forms of compensation paid to the Executive hereunder shall be subject to all
applicable taxes required to be withheld by the Company pursuant to federal,
state or local law. The Company, in its sole discretion, may (i) increase the
Base Salary from time to time and (ii) pay the Executive a cash bonus in such
amount (which amount may be zero or up to fifty thousand dollars ($50,000)) as
may be determined by the Board or a committee of the Board. The Executive shall
be solely responsible for income taxes imposed on the Executive by reasons of
any cash or non-cash compensation and benefits provided by this Agreement.
1.4.2 Stock Options. Executive shall be granted (i) incentive stock
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options (the "Options") to purchase 416,666.5 shares of the Company's Class B
Common Stock (the "Incentive Option Shares") and (ii) non-statutory stock
options to purchase 6,920.5 shares of the Company's Class B Common Stock (the
"Non-Statutory Option Shares," and together with the Incentive Option Shares,
the "Option Shares"), as set forth in detail in such Executive's Notice of
Grant of Stock Option attached hereto as Exhibit A (the "Notice of Grant").
Executive shall acquire a vested interest in (i) 20% of the Incentive Option
Shares on the date of this Agreement (the "Vesting Commencement Date"), (ii)
100% of the Non-Statutory Options Shares on the Vesting Commencement Date and
(iii) the remaining 80% of the Incentive Option Shares shall vest in successive
equal monthly installments over a forty-eight (48) month period commencing on
January 1, 1999.
1.4.3 Benefits Package. In addition to the Base Salary, during the
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Employment Term, the Executive shall be entitled to receive such pension, profit
sharing, bonus, life insurance, hospitalization, major medical, and other
benefit plans of the Company as may be in effect from time to time as are
afforded to other comparable executives of the Company.
1.4.4 Vacation. The Executive shall be entitled to vacation each
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fiscal year accruing at 1.25 days per month for an annual accrual of fifteen
(15) days. The maximum number of unused vacation days which may be accrued at
any one time shall be one hundred eighty (180) days.
1.4.5 Expenses. The Company shall, upon receipt from the Executive
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of signed and itemized lists of expenditures with supporting receipts to the
extent required by applicable income tax regulations and the Company's
reimbursement policies, reimburse the
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Executive for all out-of-pocket business expenses reasonably incurred by the
Executive in connection with his employment hereunder.
1.5 Termination. The Executive's employment and this Agreement
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(except as otherwise provided hereunder) shall terminate upon the occurrence of
any of the following, at the time set forth therefor (the "Termination Date"):
1.5.1 Voluntary Termination. Thirty (30) days following the
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Employee's written notice to the Company of termination of employment; provided,
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however, that the Company may waive all or a portion of the thirty (30) days'
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notice and accelerate the effective date of such termination (and the
Termination Date) (termination pursuant to this Section 1.5.1 being referred to
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herein as "Voluntary Termination");
1.5.2 Termination For Cause. Immediately following written notice of
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termination for "Cause" (as defined below), specifying such Cause (as determined
in good faith by the Board), given by the Company (termination pursuant to this
Section 1.5.2 being referred to herein as termination for "Cause"). As used
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herein, "Cause" means termination based on (i) the Executive's material breach
of this Agreement or any significant material written policy or procedure of the
Company, including but not limited to, policies concerning equal employment
opportunity and harassment in the workplace, (ii) conviction of the Executive
for (x) any crime constituting a felony in the jurisdiction in which committed,
(y) any crime involving moral turpitude (whether or not a felony), or (z) any
other violation of criminal law involving dishonesty or willful misconduct which
injures the Company (whether or not a felony), (iii) substance abuse by the
Executive which in any material manner interferes with the performance of his
duties under this Agreement, (iv) the failure or refusal of the Executive to
follow the lawful and proper directives of the Board which are within the scope
of the Executive's duties set forth in Section 1.2 above and which is not
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corrected within seven (7) days after written notice to the Executive
identifying such failure or refusal, (v) willful malfeasance or gross misconduct
by the Executive which discredits or damages the Company, including, without
limitation, any breach of his obligations under Section 2 or Section 3 below,
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(vi) indictment of the Executive by a grand jury for a felony violation of the
federal securities laws, (vii) the Executive's willful breach or habitual
neglect of duties as an employee of the Company (including, but not limited to
chronic absence from work for reasons other than illness), (viii) conduct by the
Executive for which the Company incurs civil liability in excess of fifty
thousand dollars ($50,000) in the aggregate to any other employee or third party
or be assessed any fine or penalty by a governmental agency or (ix) the death or
Disability of the Executive. For the purposes of this Agreement, "Disability"
means the Board's good faith determination that the Executive has been unable to
perform any material portion of his duties under this Agreement for a period of
thirty (30) consecutive days, or sixty (60) days in the aggregate during the
Employment Term, with or without reasonable accommodation, due to physical or
mental illness or incapacity.
1.5.3 Termination Without Cause. Only after the completion of the
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first twelve months of this Agreement, five days following written notice of
termination without Cause given by the Company; provided, however, that the
Executive shall be retained by the Company as a consultant and shall receive
payment of Base Salary and Option Shares as provided in Section 1.6.2 below
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(termination pursuant to this Section 1.5.3 being referred to herein as
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termination "Without Cause"). Notwithstanding anything to the contrary
contained
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herein, including without limitation Section 1.5.2(iv) hereof, the Executive
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shall not be required to relocate from Marin County or San Francisco County to
any other area and any such required relocation shall constitute a termination
Without Cause as set forth in this Section 1.5.3.
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1.5.4 Other Remedies. Termination pursuant to Section 1.5.2
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above shall be in addition to and without prejudice to any other right or remedy
to which the Company may be entitled at law, in equity, or under the Agreement.
1.6 Severance and Termination.
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1.6.1 Termination for Cause or Voluntary Termination. In the
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case of a Voluntary Termination or a termination of the Executive's employment
hereunder for Cause in accordance with Section 1.5.2 above at any time (i) the
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Executive shall not be entitled to receive payment of, and the Company shall
have no obligation to pay any severance or similar compensation attributable to
such termination other than Base Salary earned but unpaid as of the Termination
Date or otherwise as required by law, (ii) the vesting of the Option Shares
shall terminate as of the date of the termination of the Executive's employment
hereunder and (iii) the Company's obligations under this Agreement shall
immediately cease.
1.6.2 Termination Without Cause.
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(a) In the case of a termination of the Executive's employment
hereunder Without Cause in accordance with Section 1.5.3 above within the two
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year period following the date of this Agreement:
(1) The Company shall pay the Executive an amount equal to his
then applicable Base Salary for a period of one (1) year commencing on the
Termination Date (the "Post-Termination Period"), payable at the times and
subject to the tax withholding specified in Section 1.4.1 above; provided,
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however, that the payment of such salary shall be paid only if the Executive
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executes and delivers to the Company the Confidential Separation Agreement and
General Release substantially in the form of Exhibit B attached hereto (the
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"Separation and Release Agreement") and does not revoke the Separation and
Release Agreement pursuant to the terms of the same.
(2) The Company will retain the Executive as a full-time
consultant for the first six months of the Post-Employment Period and as a part-
time consultant for the remaining six months of the Post-Employment Period (i.e.
on call for a specified number of hours per week). Except for the continuation
of his salary payments pursuant to Section 1.6.2.(a)(1) above, the Executive
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shall not receive any kind of consideration, payment or benefits for his
consulting services rendered pursuant to this Agreement.
(b) In the case of a termination of the Executive's employment
hereunder Without Cause in accordance with Section 1.5.3 above after the two
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year period following the date of this Agreement:
(1) The Company shall pay the Executive an amount equal to his
then applicable Base Salary for a period equal to the shorter of (x) six (6)
months commencing on the Termination Date and (y) the remaining term of his
employment (the
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"Shortened Post-Termination Period"), payable at the times and subject to
the tax withholding specified in Section 1.4.1 above; provided, however, that
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the payment of such salary shall be paid only if the Executive executes and
delivers to the Company the Separation and Release Agreement and does not revoke
the Separation and Release Agreement pursuant to the terms of the same.
(2) The Company will retain the Executive as a part-time
consultant during the Shortened Post-Termination Period. Except for the
continuation of his salary pursuant to Section 1.6.2(b)(1) above, the Executive
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shall not receive any kind of consideration, payment or benefit for his
consulting services rendered pursuant to this Agreement.
(c) Notwithstanding any provision to the contrary set forth herein,
in Executive's Notice of Grant of Stock Option, the Incentive Stock Option
Agreement or the Non-Statutory Option Agreement referenced in such Notice of
Grant:
(1) If the Executive is terminated Without Cause in accordance
with Section 1.5.3 within the two year period following the date of this
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Agreement, the Executive's Option Shares shall continue to vest pursuant to the
Notice of Grant during the Post-Termination Period; provided, however, that if
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the aggregate number of Options Shares in which the Executive will acquire a
vested interest at the end of the Post-Termination Period would not equal at
least seventy-five percent (75%) of Option Shares, then the vesting schedule
described in the Notice of Grant will be adjusted to provide for the vesting of
an aggregate of seventy-five percent (75%) of the Option Shares at the end of
the Post-Termination Period; provided further, that such adjusted vesting
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schedule shall continue to provide for vesting in successive equal monthly
installments during the Post-Termination Period.
(2) If the Executive is terminated Without Cause in accordance
with Section 1.5.3 after the two year period following the date of the
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Agreement, the Executive's Option Shares shall continue to vest pursuant to the
Notice of Grant during the Shortened Post-Termination Period only if the
Executive will not have acquired a vested interest in at least seventy-five
percent (75%) of the Option Shares as of the Termination Date, in which case the
vesting schedule described in the Notice of Grant will be adjusted to provide
for the vesting of an aggregate of seventy-five percent (75%) of the Option
Shares at the end of the Shortened Post-Termination Period; provided further,
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that such adjusted vesting schedule shall continue to provide for vesting in
successive equal monthly installments during the Shortened Post-Termination
Period.
(d) Notwithstanding anything to the contrary herein:
(1) The Company's obligation to (i) pay the Executive the salary
under Section 1.6.2(a)(1) above or Section 1.6.2(b)(1) above and (ii) retain the
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Executive as a consultant under Section 1.6.2(a)(2) above or Section 1.6.2(b)(2)
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above shall cease immediately in the event of the Executive's breach of his
obligations under Section 2 above or Section 3 above or, if applicable, the
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Executive's breach of his obligations under the Non-Competition Agreement of
even date herewith by and between the Company and the Executive (the "Non-
Competition Agreement").
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(2) The vesting of the Executive's Option Shares under Sections
1.6.2(c)(1) and (2) above shall cease immediately in the event of the
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Executive's breach of his obligations under Section 2 above or Section 3 above
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or, if applicable, the Executive's breach of his obligations under the Non-
Competition Agreement.
1.6.3 Termination Complete. It is expressly acknowledged by the
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Executive that, except as provided in Sections 1.6.2(a)(1) and 1.6.2(b)(1)
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above, the provisions of this Section 1.6 shall have the effect of eliminating
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all compensation (salary, stock options, bonuses, and benefits) which would have
been paid or available had such employment relationship not been terminated.
2. CONFIDENTIAL INFORMATION - NON-DISCLOSURE
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2.1 Definition of Confidential Information. The Executive hereby
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acknowledges that during the Executive's employment hereunder, the Executive may
have access to, make use of, acquire, create, develop or add to certain
confidential and proprietary information regarding the Company or any company
owned by or affiliated with the Company (collectively, the "COMPS Group")
(whether in existence prior to, as of or after the date hereof, including
without limitation any confidential and proprietary information that the Company
purchased from REALBID LLC under the Purchased Agreement) (collectively,
"Confidential Information"), which Confidential Information shall include,
without limitation, all of the following materials and information (whether or
not reduced to writing and whether or not patentable or protected by copyright):
(i) any and all trade secrets concerning the business and affairs of any member
of the COMPS, product specifications, data, procedures, know-how, formulae,
compositions, processes, designs, sketches, photographs, graphs, drawings,
samples, inventions, models, documentation, techniques, diagrams, flowcharts,
new products and new technology information, product prototypes, product copies,
manufacturing, development or marketing techniques, material development or
marketing timetables, strategies and development plans, and ideas, past, current
and planned research and development, current and planned manufacturing and
distribution methods and processes, customer lists, current and anticipated
customer requirements, price lists, market studies, business plans, computer
software and programs (including object code and source code), computer software
and database technologies and information (including without limitation
confirmed sales transactions, buyer and seller information, listings, space
availability and tenant and lease comparables), systems, structures and
architectures (and related processes, formulae, compositions, improvements,
devices, know-how, inventions, discoveries, concepts, ideas, designs, methods
and information) of any member of the COMPS Group including but not limited to
information related to the customers, suppliers or personnel of such members of
the COMPS Group, and any other information, however, documented, of any member
of the COMPS Group that is a trade secret within the meaning of any and all
applicable state and federal trade secret laws; (ii) any and all information
concerning the business and affairs of any member of the COMPS Group (which
includes historical financial statements, financial projections and budgets,
historical and projected sales, capital spending budgets and plans, the names
and backgrounds of key personnel and personnel training and techniques and
materials), however documented; and (iii) any and all notes, analysis,
compilations, studies, summaries, and other material prepared by or for any
member of the COMPS Group containing or based, in whole or in part, on any
information included in the foregoing. The parties hereto agree that the
failure of any Confidential Information to be marked
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or otherwise labeled as confidential or proprietary information shall not affect
its status as Confidential Information. Notwithstanding the foregoing,
Confidential Information shall not include any information (i) which is
generally known to the public or to companies in businesses similar to the
Company's business (except for the companies which license such Confidential
Information from any member of the COMPS Group), (ii) which later, through no
act of any of the Executive, REALBID, or the other parties to the Asset Purchase
Agreement, becomes generally known or (iii) information required to be disclosed
by the Executive pursuant to a subpoena or court order, or pursuant to a
requirement of a governmental agency or law of the United States of America or a
state thereof or any governmental or political subdivision thereof, provided
that (a) the Executive will provide the Company with prior written notice of
such disclosure in order that the Company may attempt to obtain a protective
order or the assurance of confidential treatment and (b) the Executive will
cooperate with the Company in attempting to obtain such order or assurance.
2.2 The Executive Covenant. In consideration of the Company's
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entering into this Agreement and providing the Base Salary, the Option Shares
and other benefits to the Executive, and further in consideration of the
Executive's continued exposure to the Confidential Information and the
Executive's continued receipt of specialized training from members of the COMPS
Group, the receipt of which are hereby acknowledged by the Executive, the
Executive covenants as follows:
2.2.1 Non-Use and Non-Disclosure. Commencing on the date hereof and
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at all times thereafter, the Executive shall hold in the strictest confidence
(except as previously approved by the Company in writing), and shall not,
directly or indirectly, disclose, divulge, reveal, report, publish, transfer or
otherwise communicate, or use for his own benefit or the benefit of any other
person, partnership, firm, corporation or other entity, or use to the detriment
of any member of the COMPS Group, or misuse in any way, any Confidential
Information. The Executive acknowledges that he will in no way infringe upon
any COMPS copyrights and will in no way use, copy, appropriate or redistribute
any part of the Confidential Information, whether obtained directly or
indirectly from COMPS, without a specific written license agreement with COMPS.
It is agreed that any derivative, modification or elaboration of any
Confidential Information by any third party remains the proprietary property of
COMPS for purposes of this Agreement. The Executive and the Company each hereby
stipulates that, as between them, all Confidential Information constitutes
important material and confidential and/or proprietary information of the
Company's, constitutes unique and valuable information, and affects the
successful conduct of the Company's business and the goodwill of the COMPS
Group, and that members of the COMPS Group shall be entitled to recover their
respective damages, in addition to any injunctive remedy that may be available,
for any breach of this Section 2.
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2.2.2 Trade Secrets. All trade secrets of the COMPS Group will be
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entitled to all of the protection and benefits under all applicable federal and
state trade secrets law. If any information that any member of the COMPS Group
deems to be a trade secret is found by a court of competent jurisdiction not to
be a trade secret for purposes of this Agreement, such information will,
nevertheless, be considered Confidential Information for purposes of this
Agreement. The Executive hereby waives any requirement that the members of the
COMPS Group submit proof of the economic value of any trade secret or post a
bond or
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other security. The Executive hereby acknowledges that the database technologies
and information (including without limitation confirmed sales transactions,
buyer and seller information, listings, space availability and tenant and lease
comparables) shall be considered a trade secret of the COMPS Group.
2.2.3 Ownership. The Executive hereby acknowledges and agrees that
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all right, title and interest in and to any Confidential Information shall be
and shall remain the exclusive property of the COMPS Group, and that any
Confidential Information which the Executive acquires from any member of the
COMPS Group was received in confidence and as a fiduciary of such member of the
COMPS Group. Without limiting the foregoing, the Executive shall assign to the
COMPS Group, any and all right, title or interest which the Executive may have
in all Confidential Information made, developed or conceived of in whole or in
part by the Executive during his employment hereunder. The Executive further
agrees to execute and deliver any and all instruments, and to do all other
things reasonably requested by any member of the COMPS Group (both during and
after the his employment hereunder) in order to vest more fully in such member
of the COMPS Group all ownership rights in such Confidential Information. All
equipment, notebooks, documents, memoranda, reports, files, samples, books,
correspondence, lists, other written and graphic records, and the like, in any
way relating to any Confidential Information, the business of the Company or its
activities, which the Executive shall prepare, use, construct, observe, process,
or control (collectively, "Materials") shall be and shall remain the COMPS
Group's exclusive property, and the Executive hereby agrees to deliver all
Materials, together with any and all copies thereof, promptly to the Company on
behalf of the COMPS Group upon the termination of this Agreement for any reason.
The Executive further agrees that any property situated on the Company's
premises and owned by the Company, including disks and other storage media,
filing cabinets or other work areas, is subject to inspection by Company
personnel at any time with or without notice.
2.2.4 Other Obligations. The Executive acknowledges that the COMPS
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Group, from time to time, may have agreements with other persons, entities or
with the U.S. Government or agencies thereof, which imposes obligations or
restrictions on the COMPS Group regarding inventions made during the course of
work thereunder, or regarding the confidential nature of such work. The
Executive hereby agrees to be bound by all such obligations or restrictions and
to take all action necessary to discharge the obligations of the COMPS Group
thereunder.
3. NON-COMPETITION AND NON-INTERFERENCE
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3.1 Covenant of the Executive. In consideration of the Company's
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entering into this Agreement and providing the Base Salary, Option Shares and
other benefits to the Executive, and further in consideration of the Executive's
continued exposure to the Confidential Information and the Executive's continued
receipt of specialized training from the members of the COMPS Group, the receipt
of which are hereby acknowledged by the Executive, the Executive covenants as
follows:
3.1.1 Non-Competition. During the Executive's employment
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hereunder and the Severance Period, the Executive shall not, directly or
indirectly, own, manage, engage in, operate or conduct, prepare to or plan to
conduct or assists any person or entity to conduct any
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business, or have any interest in any business, person, firm, corporation or
other entity (as a principal, owner, agent, employee, shareholder, officer,
director, joint venturer, partner, security holder) (except for the ownership of
publicly-traded securities constituting not more than five percent (5%) of the
outstanding securities of the issuer thereof), creditor (except for trade credit
extended in the ordinary course of business), consultant or in any other
capacity that engages in any business which is the same as, similar to or
competitive with the business of any member of the COMPS Group including without
limitation the commercial real estate information business, which shall include
among other things, buyer/seller matching, transaction facilitation, listing
services, sales comparables, lease comparables, space availability, tenant
information, property inventory, property characteristics, automated valuation
models and city and regional market overviews (collectively, the "Business"),
anywhere in the United States. The covenants set forth in this Section 3.1.1
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shall be construed as a series of separate covenants covering their subject
matter in each of the separate states where the Company conducts the Business,
and except for geographic coverage, each such separate covenant shall be deemed
identical in terms to the covenant set forth above in this Section 3.1.1 To the
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extent that any such covenant shall be judicially unenforceable in any one or
more of such states, such covenant shall not be affected with respect to each of
the other states. Each covenant with respect to such states shall be construed
as severable and independent.
3.1.2 No Diversion of Others. During the Executive's employment
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hereunder and the Severance Period, the Executive shall not, either for himself
or for any other person, firm, corporation or other entity, directly or
indirectly, or by action in concert with others:
(a) induce or influence, or seek to induce or influence, any Person
who is engaged by any member of the COMPS Group (as an agent, employee,
consultant, or in any other capacity) or any successor thereto with the purpose
of obtaining such person as an employee or customer for a business competitive
with any member of the COMPS Group's business; or
(b) divert or take away or attempt to divert or take away, or solicit
or attempt to solicit, any existing or potential customer of any member of the
COMPS Group (whether or not such customer is actually a customer of any member
of the COMPS Group as of the date hereof, including without limitation any
customer solicited by the Executive or which became known by the Executive prior
to the date hereof) with the purpose of obtaining such person as an employee or
customer for a business competitive with any member of the COMPS Group's
Business.
3.1.3 Organizing Competitive Business. Without limiting any of the
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other provisions contained in this Section 3, during the Executive's employment
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hereunder and the Severance Period, the Executive shall not undertake planning
for or organization of any business activity competitive with the Business of
any member of the COMPS Group, or conspire with agents, employees, consultants
or other representatives of any member of the COMPS Group for the purpose of
organizing any such competitive business activity.
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4. INJUNCTIVE RELIEF AND ADDITIONAL REMEDY
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4.1 In General. The Executive acknowledges and agrees that members
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of the COMPS Group shall suffer irreparable harm in the event that the Executive
breaches any of his obligations under Sections 2 or 3 hereof, and that monetary
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damages shall be inadequate to compensate the damaged members of the COMPS Group
for any such breach. Accordingly, the Executive agrees that in the event of any
breach or threatened breach by the Executive of any of the provisions of
Sections 2 or 3 hereof, the damaged members of the COMPS Group shall be entitled
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to a temporary restraining order, preliminary injunction and permanent
injunction in order to prevent or restrain any such breach or threatened breach
by the Executive, or by any or all of the Executive's agents, representatives or
other persons directly or indirectly acting for, on behalf of or with the
Executive, without having to prove damages.
4.2 No Limitation of Remedies. Notwithstanding the provisions set
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forth in Section 4.1 above, or any other provision contained in this Agreement,
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the parties hereby agree that no remedy conferred by any of the specific
provisions of this Agreement, including, without limitation, this Section 4, is
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intended to be exclusive of any other remedy, and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute or otherwise.
5. REASONABLENESS OF RESTRICTIONS.
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THE EXECUTIVE HAS CAREFULLY READ AND CONSIDERED THE PROVISIONS OF
SECTIONS 2 AND 3 HEREOF AND, HAVING DONE SO, HEREBY AGREES THAT THE RESTRICTIONS
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SET FORTH IN SUCH SECTIONS ARE FAIR AND REASONABLE AND ARE REASONABLY REQUIRED
FOR THE PROTECTION OF THE INTERESTS OF THE COMPANY.
6. REPRESENTATIONS AND WARRANTIES
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6.1 By the Executive. The Executive represents and warrants to the
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Company that (i) this Agreement is valid and binding upon and enforceable
against him in accordance with its terms, (ii) the Executive is not bound by or
subject to any contractual or other obligation that would be violated by his
execution or performance of this Agreement, including, but not limited to, any
non-competition agreement presently in effect, and (iii) the Executive is not
subject to any pending or, to the Executive's knowledge, threatened claim,
action, judgment, order or investigation that could adversely affect his ability
to perform his obligations under this Agreement or the business reputations of
the Company.
6.2 By the Company. The Company represents and warrants to the
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Executive that (i) this Agreement is valid and binding upon and enforceable
against the Company in accordance with its terms, (ii) the Company is not bound
by or subject to any contractual or other obligation that would be violated by
its execution or performance of this Agreement, including, but not limited to,
any non-competition agreement presently in effect, and (iii) the Company is not
subject to any pending, or to the Company's knowledge, threatened claim, action,
judgement, order or investigation that could adversely affect its ability to
perform its obligations under this Agreement.
10
7. SURVIVAL OF CERTAIN RIGHTS AND OBLIGATIONS
------------------------------------------
Sections 2, 3 and 6 above shall survive any termination of this
---------- - -
Agreement and continue in full force and effect as is necessary or appropriate
to enforce the covenants and agreements of the Executive in Sections 2, 3 and 6.
---------- - -
The existence of any claim or cause of action by the Executive against the
Company, whether predicated on this Agreement or otherwise, shall not constitute
a defense to the enforcement by the Company of the covenants and agreements of
Sections 2, 3 and 6 above.
- ---------- - -
8. MISCELLANEOUS
-------------
8.1 Notices. All notices, requests and other communications
-------
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally against written receipt or by facsimile transmission with
answer back confirmation or mailed (postage prepaid by certified or registered
mail, return receipt requested) or by overnight courier to the parties at the
following addresses or facsimile numbers:
If to the Executive, to:
__________________________________
__________________________________
__________________________________
__________________________________
If to the Company, to:
COMPS InfoSystems, Inc.
9888 Carroll Centre Road, Suite 100
San Diego, CA 92126
Facsimile No.: (619) 684-3292
Attention: Mr. Christopher A. Crane
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 8.1, be deemed given upon
-----------
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section 8.1, be deemed given upon receipt, and (iii) if
-----------
delivered by mail in the manner described above to the address as provided in
this Section 8.1, be deemed given upon receipt (in each case regardless of
-----------
whether such notice, request or other communication is received by any other
Person to whom a copy of such notice, request or other communication is to be
delivered pursuant to this Section). Any party from time to time may change its
address, facsimile number or other information for the purpose of notices to
that party by giving notice specifying such change to the other parties hereto.
8.2 Obligations Contingent on Performance. The obligations of the
-------------------------------------
Company hereunder, including its obligation to pay the compensation provided for
herein, are contingent upon the Executive's performance of his obligations
hereunder.
11
8.3 Entire Agreement. This Agreement, the Purchase Agreement and the
----------------
documents executed in connection with the Purchase Agreement, including, without
limitation, the Non-Competition Agreement, supersede all prior discussions and
agreements among the parties with respect to the subject matter hereof and
contain the sole and entire agreement between the parties hereto with respect
thereto.
8.4 Waiver. Any term or condition of this Agreement may be waived at
------
any time by the party that is entitled to the benefit thereof, but no such
waiver shall be effective unless set forth in a written instrument duly executed
by or on behalf of the party waiving such term or condition. No waiver by any
party hereto of any term or condition of this Agreement, in any one or more
instances, shall be deemed to be or construed as a waiver of the same or any
other term or condition of this Agreement on any future occasion. All remedies,
either under this Agreement or by law or otherwise afforded, will be cumulative
and not alternative.
8.5 Amendment. This Agreement may be amended, supplemented or
---------
modified only by a written instrument duly executed by or on behalf of each
party hereto.
8.6 No Third Party Beneficiary. The terms and provisions of this
--------------------------
Agreement are intended solely for the benefit of each party hereto and the
Company's successors or assigns, and it is not the intention of the parties to
confer third-party beneficiary rights upon any other Person.
8.7 No Assignment; Binding Effect. This Agreement is binding upon,
-----------------------------
inures to the benefit of and is enforceable by the parties hereto and any
successors or assigns of the Company. The Executive shall not be entitled to
assign his right, interest or obligations under this Agreement without the prior
written consent of the Company.
8.8 Headings. The headings used in this Agreement have been inserted
--------
for convenience of reference only and do not define or limit the provisions
hereof.
8.9 Severability. The Company and Executive intend all provisions of
------------
this Agreement to be enforced to the fullest extent permitted by law.
Accordingly, if a court of competent jurisdiction determines that the scope
and/or operation of any provision of this Agreement is too broad to be enforced
as written, the Company and Executive intend that the court should reform such
provision to such narrower scope and/or operation as it determines to be
enforceable. If, however, any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future law, and not subject
to reformation, then (i) such provision shall be fully severable, (ii) this
Agreement shall be construed and enforced as if such provision was never a part
of this Agreement, and (iii) the remaining provisions of this Agreement shall
remain in full force and effect and shall not be affected by illegal, invalid,
or unenforceable provisions or by their severance.
8.10 Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of California applicable to
contracts executed and performed in such State, without giving effect to
conflicts of laws principles.
8.11 Arbitration. Except as otherwise provided in Section 4 above,
----------- ---------
the Executive agrees that any and all disputes that the Executive has with the
Company or any of its
12
employees, which arise out of the Executive's employment, the termination of
employment, or under the terms of this Agreement, shall be resolved through
final and binding arbitration. This shall include, without limitation, disputes
relating to this Agreement, any disputes regarding the Executive's employment by
the Company or the termination thereof, claims for breach of contract or breach
of the covenant of good faith and fair dealing, and any claims of discrimination
or other claims under any federal, state or local law or regulation now in
existence or hereinafter enacted and as amended from time to time concerning in
any way the subject of the Executive's employment with the Company or its
termination. The only claims not covered by this Section 8.11 are claims for
------------
benefits under the workers' compensation laws or unemployment insurance laws and
any claims arising from the Executive's breach of Sections 2 or 3 of this
---------- -
Agreement. Binding arbitration will be conducted in San Diego, California, in
accordance with the rules and regulations of the American Arbitration
Association. Each party will bear one half of the cost of the arbitration filing
and hearing fees, and the cost of the arbitrator. Each party will bear its own
attorneys' fees, unless otherwise decided by the arbitrator. The Executive
understands and agrees that the arbitration shall be instead of any civil
litigation and that the arbitrator's decision shall be final and binding to the
fullest extent permitted by law and enforceable by any court having jurisdiction
thereof. Each party shall be entitled to pre-hearing discovery as provided in
California Code of Civil Procedure Section 1283.05.
8.12 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by facsimile, each of which will be deemed an original, but all
of which together will constitute one and the same instrument.
[SIGNATURE PAGE TO FOLLOW]
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on the date first written above.
"COMPANY"
COMPS INFOSYSTEMS, INC.
a Delaware corporation
By:
----------------------
Name:
----------------------
Title:
----------------------
"EXECUTIVE"
-----------------------------
EXHIBIT A
NOTICE OF GRANT
See Exhibit 10.34 to Registration Statement on Form S-1
EXHIBIT B
CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE
(Employee) and COMPS InfoSystems, Inc. (COMPS - Employer) agree to
terminate their employment relationship on the following basis:
1. (Employee) and COMPS agree that (Employee) shall separate his/her employment
with COMPS effective (Date). (Employee) will return all of COMPS' keys, records,
and files (electronic or other) on (Date) and will cooperate fully with COMPS'
managers and employees in a professional manner to assure a smooth transition.
2. In consideration for (Employee)'s agreement and commitments herein, COMPS
will provide (Employee) with the following additional consideration to which
he/she is not otherwise entitled:
a) Additional compensation and stock options, if any, as described in
the Employment Agreement between Employee and COMPS, dated
________, so long as (Employee) has not revoked this Separation
Agreement during the preceding seven (7) days.
b) Outplacement services to be provided by Drake, Beam, Morin, Inc.
3. (Employee) agrees that he/she is not entitled to receive, and will not
claim, any right, benefit or compensation other than what is expressly set forth
in Paragraph 2 above, and hereby expressly waives any claim to any compensation,
benefit or payment whatsoever except as expressly referenced in Paragraph 2
hereof.
4. (Employee) and COMPS promise not to disparage each other in any manner and
Employee promises not to use or disclose any confidential information he learned
while employed by COMPS. (Employee) further agrees that he/she will not
solicit, participate in or assist in any way the solicitation of any employees
of COMPS to cease employment or doing present or future business with COMPS.
(Employee) and COMPS further agree to keep this agreement and its contents in
complete confidence and not to disclose the fact or amount of these additional
payments to any past, present or prospective employee of COMPS. The terms of
this Agreement are confidential and shall not be divulged to any party without
the prior written consent of the non-disclosing party, which shall not be
unreasonably withheld; provided, however, that COMPS and (Employee) can disclose
-------- -------
the details of this Agreement to their respective counsel.
5. In consideration of the compensation set forth in Paragraph 2, (Employee)
does hereby unconditionally, irrevocably and absolutely release and discharge
COMPS, its owners, directors, officers, employees, agents, attorneys,
stockholders, insurers, divisions, successors and/or assigns and any related
holding, parent or subsidiary corporations, from any and all loss, liability,
claims, demands, causes of action, or suits of any type, whether in law and/or
in equity, related directly or indirectly of in any way connected with any
transaction, affairs or occurrences
B-1
between them to date, including, but not limited to, (Employee)'s employment
with COMPS, and the termination of said employment.
In further consideration thereof, (Employee) irrevocably and absolutely agrees
that she will not prosecute nor allow to be prosecuted on her behalf in any
administrative agency, whether federal or state, or in any court, whether
federal or state, any claim or demand of any type related to the matter released
above, it being an intention of the parties that with the execution by
(Employee) of this Release, COMPS, its owners, officers, directors, employees,
agents, attorneys, successors and/or assigns and all related holding, parent and
subsidiary corporations will be absolutely, unconditionally and forever
discharged of and from all obligations to or on behalf of (Employee) related in
any way to the matter discharged herein.
6. This Separation Agreement is intended by the parties to release and
discharge any and all claims of (Employee) against COMPS InfoSystems, Inc.
including, but not limited to, any claims arising under the Age Discrimination
in Employment Act, 29 U.S.C. 621 et seq. It is the intent of the parties that
------
this Separation Agreement satisfy the requirements of the Older Workers Benefit
Protection Act, Public Law 101-433, codified at 29 U.S.C. 626(f). The following
general provisions, along with the other provisions of the Separation Agreement,
are agreed to for this purpose:
a. (Employee) acknowledges and agrees that he has read and he understands
the terms of this Separation Agreement.
b. (Employee) acknowledges that he has been given a full opportunity to
consult with his lawyer with respect to the matters referenced in this
Separation Agreement, and that (Employee) has obtained and considered
such legal counsel as he deems necessary, such that (Employee) is
entering into this Separation Agreement freely, knowingly, and
voluntarily;
c. (Employee) acknowledges that he has been given at least 21 days in
which to consider whether or not to enter into this Separation
Agreement;
d. (Employee) may revoke Separation Agreement during the seven (7) day
period following the execution of this Separation Agreement. If not
revoked, this Separation Agreement shall become effective eight (8)
days after (Employee) signs this Separation Agreement.
7. It is further understood and agreed that as a condition of this settlement,
all rights under Section 1542 of the Civil Code of the State of California are
expressly waived by (Employee). Such Section reads as follows:
"A General Release does not extend to claims which the creditor
does not know or suspect to exist in her favor at the time of
executing the release, which if known by her must have materially
affected her settlement with the debtor."
A-2
(Employee) does certify that he has read all of this Release, the quoted Civil
Code section and that he fully understands all of the same. (Employee) hereby
expressly agrees that this Release shall extend and apply to all unknown,
unsuspected and unanticipated injuries and damages, as well as to any that are
now alleged.
8. This Agreement contains all of the terms, promises, representations and
understandings made between the parties. (Employee) agrees that no promises,
coercion, representations or inducements have been made which caused him to sign
this Agreement other than those which are expressly set forth above and that the
terms of this Agreement are contractual and not a mere recital.
9. (Employee) agrees that any and all disputes that (Employee) has with COMPS
or any of its employees, which arise under the terms of this Agreement, shall be
resolved through final and binding arbitration. This shall include, without
limitation, disputes relating to this Agreement. Binding arbitration will be
conducted in San Diego, California, in accordance with the rules and regulations
of the American Arbitration Association. Each party will bear one half of the
cost of the arbitration filing and hearing fees, and the cost of the arbitrator.
Each party will bear its own attorneys' fees, unless otherwise decided by the
arbitrator. (Employee) understands and agrees that the arbitration shall be
instead of any civil litigation and that the arbitrator's decision shall be
final and binding to the fullest extent permitted by law and enforceable by any
court having jurisdiction thereof.
10. If any provision of this Agreement, or part thereof, is held invalid, void
or voidable as against the public policy or otherwise, the invalidity shall not
affect other provisions, or parts thereof.
11. This Release may be pleaded as a full and complete defense and may be used
as the basis for an injunction against any action, suit or proceeding which may
be prosecuted, instituted or attempted by either party in breach thereof.
12. This agreement has been presented to COMPS InfoSystems, Inc. and (Employee)
for consideration on (Date) by Rebecca Seagle, Manager of Human Resources, for
Christopher A. Crane, President and Chief Executive Officer of COMPS
InfoSystems, Inc.
A-3
13. The parties hereto warrant and represent to each other that it/he has read
and understands the meaning of each provision of this Agreement and it/his
signature below constitutes it/his acceptance of each term of the Agreement.
WE AGREE TO ALL OF THE FOREGOING TERMS. THIS AGREEMENT HAS BEEN
EXECUTED ON THE DATE SHOWN BELOW AT SAN DIEGO, CALIFORNIA
COMPS InfoSystems, Inc. (COMPS)
By:
------------------------------------- --------------------------
Christopher A. Crane Date
President and Chief Executive Officer
------------------------------------- --------------------------
(Employee) Date
- ---------------------------------------- --------------------------
Rebecca Seagle Date
Manager of Human Resources
A-4
Schedule to Exhibit 10.17
Executive Title
- --------- -----
Emmett DeMoss Chairman of REALBID Division and
Vice President of COMPS.COM, INC.
Robert Potter President of REALBID Division and
Vice President of COMPS.COM, INC.