Employment Agreement - Navigation Technologies Corp. and David B. Mullen
NAVIGATION TECHNOLOGIES CORPORATION
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of October 1, 2002 by and between Navigation Technologies Corporation, a Delaware corporation (the "Company"), and David B. Mullen ("Executive").
In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Employment. The Company shall employ Executive, and Executive hereby accepts employment with the Company, upon the terms and conditions set forth in this Agreement, for the period beginning on the date hereof and ending as provided in Section 5 hereof (the "Employment Period").
2. Position and Duties.
(a) During the Employment Period, Executive shall serve as Chief Financial Officer (CFO) of the Company and shall have the normal duties, responsibilities, functions and authority of such position, subject to the powers of the board of directors of the Company (the "Board") and the Company's President and Chief Executive Officer (the "CEO") to expand or limit such duties, responsibilities, functions and authority and to override actions of officers of the Company. Without limiting the foregoing: Executive shall (i) keep or cause to be kept the books of account of the Company in a thorough and proper manner, (ii) render statements of the financial affairs of the Company in such form and as often as required by the Board of Directors or the President and CEO, and (iii) make certifications and other statements required of CFO's by SEC regulations and other applicable regulations and listings requirements. Executive, subject to the order of the Board of Directors, shall have the custody of all funds and securities of the Company.
(b) During the Employment Period, Executive shall report to the CEO and shall devote his best efforts and his full business time and attention (except for (i) permitted vacation periods, (ii) reasonable periods of illness or other incapacity, and (iii) to the extent and for so long as approved by the Board and/or CEO, limited amounts of time and attention to serve as a director on the board of other company(ies)) to the business and affairs of the Company and its Subsidiaries. Executive shall perform his duties, functions and responsibilities to the Company and its Subsidiaries to the best of his abilities in a diligent, trustworthy, businesslike and efficient manner. Executive will conduct his primary business activities from within the Company's principal place of business, currently in the Chicago, Illinois area, other than while Executive is engaged in business travel for the Company.
(c) For purposes of this Agreement, "Subsidiaries" shall mean any corporation or other entity of which the securities or other ownership interests having the voting power to elect a majority of the board of directors or other governing body are, at the time of determination, owned by the Company, directly or through one of more Subsidiaries.
3. Compensation and Benefits.
(a) During the Employment Period, Executive's base salary shall be $330,000 per annum or such higher rate as the Board or the CEO may determine from time to time (as adjusted from time to time, the "Base Salary"), which salary shall be payable by the Company in accordance with the Company's general payroll practices. In addition, the Board may, in accordance with the Company's annual discretionary bonus plan, award an annual bonus to Executive of up to 50% of his Base Salary for each full calendar year in which Executive is employed with the Company or any of its Subsidiaries; it being understood and agreed, however, that the potential annual bonus for the period commencing on the date hereof and ending on December 31, 2002 shall be $55,000. Each bonus payment to be made to
Executive pursuant to this Section 3(a) shall be paid on or before March 31st of the calendar year immediately following the period to which such bonus relates.
(b) During the Employment Period, Executive shall be entitled to participate in all of the Company's employee benefit programs for which all senior executive employees of the Company are generally eligible.
(c) During the Employment Period, the Company shall reimburse Executive for all reasonable expenses incurred by him in the course of performing his duties and responsibilities under this Agreement to the extent such expenses are consistent with the Company's policies in effect from time to time with respect to travel, entertainment and other business expenses, subject to the Company's requirements with respect to advance approval, reporting and documentation of such expenses.
(d) All amounts payable to Executive as compensation hereunder shall be subject to all required withholding by the Company.
4. Stock Option Grant
The Company will recommend to the Compensation Committee of the Board of Directors that Executive be granted, under the Navigation Technologies Corporation 2001 Stock Incentive Plan and Stock Option Agreement, an option to purchase four (4) million shares of common stock of the Company at a per-share exercise price equal to the per-share fair market value of Company common stock on the date of grant of such option. Such grant shall only be effective upon Executive's execution of such Stock Option Agreement.
(a) The Employment Period shall continue until Executive's resignation, disability (as determined by the Board based on evaluations performed by each party's appointed physician) or death or until the Board or the CEO terminates Executive's employment with or without Cause (as defined in Section 5(e) below)). Except as otherwise provided herein, (i) a termination of the Employment Period by the Company without Cause shall be effective upon the 30th day following the delivery to Executive of a written notice of such termination, provided that the Company shall be entitled to revoke such notice of termination at anytime prior to such 30th day, in which case the Employment Period shall continue as if such notice had never been delivered to Executive, and (ii) a termination of the Employment Period with Cause shall be effective upon the delivery to Executive of a written notice of such termination, provided that such written notice shall contain a detailed description of the Company's basis for such termination.
(b) In the event the Employment Period is terminated by the Company without Cause or by Executive with Good Reason (as defined in Section 5(f) below), Executive shall be entitled to (i) receive from the Company an aggregate amount equal to Executive's Base Salary, plus target bonus amount pro-rated for the year based on the date of termination, and (ii) continue to participate in all of the Company's medical, dental and vision benefit programs (but not any other programs, including bonus and incentive compensation plans and any programs that require continuing status as an active employee in order to participate. e.g., a 401(k) plan, a profit sharing plan, life insurance) for which, and on generally the same terms and conditions as, all senior executive employees of the Company and its Subsidiaries are then generally eligible (other than bonus and incentive compensation plans) from the date of such termination through the first anniversary of the date of such termination. The amount payable, if any, pursuant to this Section 5(b) shall be paid in 12 regular monthly installments commencing on the last day of the month immediately following the date of such termination (or, at the Company's sole discretion, in one lump sum payment within 30 days following termination of the Employment Period; provided that such lump sum payment shall be equal to the present value of the payments otherwise payable pursuant to this Section 5(b), discounted at a rate of 10% per annum). In the event that the Employment Period is terminated by the Company for any reason other than Cause, the Company shall execute a general release with respect to Executive's employment with the Company.
(c) In the event the Employment Period is terminated under any circumstances not covered by Section 5(b) above, Executive shall be entitled to receive his Base Salary through the date of termination and shall not be entitled to any other salary, compensation or benefits from the Company or its Subsidiaries thereafter.
(d) Notwithstanding anything in this Section 5 to the contrary, Executive shall only be entitled to receive, and the Company shall only be obligated to provide, the payments and benefits set forth in Section 5(b) above if Executive has executed and delivered to the Company a General Release in form and substance substantially similar to Exhibit A attached hereto and, then, for only so long as Executive has not breached any provision of Section 5 of this Agreement or any provision of that certain Proprietary Information and Inventions Agreement, dated as of the date hereof, by and between Executive and the Company (the "Proprietary Rights Agreement"). Except as otherwise expressly provided herein, all of Executive's rights to salary, bonuses, fringe benefits and other compensation hereunder which would otherwise accrue or become payable after the termination of the Employment Period shall cease upon such termination, other than those expressly required under applicable law (such as COBRA). The Company may offset any amounts Executive owes the Company or its Subsidiaries against any amounts the Company or any of its Subsidiaries owes Executive hereunder.
(e) For purposes of this Agreement, "Cause" means (i) the commission by Executive of a felony or a crime involving moral turpitude or the commission by Executive of any other act or omission involving dishonesty or fraud with respect to the Company or any of its Subsidiaries or any of their respective customers or suppliers, (ii) conduct by Executive tending to bring the Company or any of its Subsidiaries into substantial public disgrace or disrepute, (iii) substantial and repeated failure by Executive, after the Company provides Executive with written notice of such failure, to perform duties of the office held by Executive as reasonably directed by the Board or CEO, (iv) gross negligence or willful misconduct by Executive with respect to the Company or any of its Subsidiaries, (v) any breach by Executive of the Proprietary Rights Agreement or Section 6 of this Agreement.
(f) For purposes of this Agreement, "Good Reason" means (i) a significant diminution by the Company of Executive's duties and responsibilities as compared to the duties and responsibilities of Executive as of the date hereof, and/or (ii) a reduction by the Company of Executive's Base Salary to an amount below his initial Base Salary, unless such reduction is made in connection with a company-wide reduction for budgetary purposes, and/or (iii) Executive is required, as a condition to continued employment with the Company, to perform Executive's day-to-day duties and responsibilities to the Company at a location that would require Executive to relocate his residence outside of the Chicago metropolitan area.
6. Non-Compete, Non-Solicitation. In further consideration of the compensation to be paid to Executive hereunder, Executive acknowledges that in the course of his employment with the Company and its Subsidiaries he will become familiar with the Company's trade secrets and with other confidential information concerning the Company and its Subsidiaries and that his services will be of special, unique and extraordinary value to the Company and its Subsidiaries. Therefore, Executive agrees that:
(a) during the Employment Period and for one year thereafter (the "Noncompete Period"), Executive shall not, directly or indirectly, own any interest in, manage, control, participate in, consult with, render services for, or in any other manner engage in any enterprise in the business of (i) creating, managing, adapting, applying, formatting, distributing, selling and/or licensing land map information databases representing roadways and related information, with or without additional location-dependent information, such as points-of-interest, traffic, weather, construction and other similar information, (ii) related database creation, access management, aggregation, updating and/or distribution of software, (iii) vehicle navigation software and logical extensions thereof, and/or (iv) providing consulting and/or other services in the fields of map databases and vehicle navigation and related software, in each case within any geographical area in which the Company or any of its Subsidiaries engage (or have plans to engage in such businesses as of the date of termination) during
the Noncompete Period. Nothing herein shall prohibit Executive from being a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as Executive has no active participation in the business of such corporation;
(b) during the Noncompete Period, Executive shall not directly or indirectly through another person or entity (i) induce or attempt to induce any employee of the Company or any of its Subsidiaries to leave the employ of the Company or such Subsidiary, or in any way interfere with the relationship between the Company or any of its Subsidiaries and any employee thereof, (ii) hire any person who was an employee of the Company or any Subsidiary in a position above the level of Manager at any time during the Employment Period, and/or (iii) induce or attempt to induce any customer, supplier, licensee, licensor, franchisee or other business relation of the Company or any of its Subsidiaries to cease doing business with the Company or such Subsidiary, or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company or any of its Subsidiaries (including, without limitation, making any negative or disparaging statements or communications regarding the Company or any of its Subsidiaries);
(c) if, at the time of enforcement of this Section 6, a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Executive acknowledges that the restrictions contained in this Section 6 are reasonable and that he has reviewed the provisions of this Agreement with his legal counsel;
(d) in the event of the breach or a threatened breach by Executive of any of the provisions of this Section 6, the Company, in addition and supplementary to other rights and remedies existing in its favor, shall be entitled to specific performance and/or injunctive or other equitable relief from a court of competent jurisdiction in order to enforce or prevent any violation of the provisions hereof (without posting a bond or other security). In addition, in the event of an alleged breach or violation by Executive of this Section 6, the Noncompete Period shall be tolled until such breach or violation has been duly cured; and
(e) the provisions of this Section 6 are in consideration of: (i) employment with the Company, (ii) a grant to Executive of certain options to purchase shares of the Company's common stock and (iii) additional good and valuable consideration as set forth in this Agreement. In addition, Executive agrees and acknowledges that the restrictions contained in this Section 6 and in the Proprietary Rights Agreement do not preclude Executive from earning a livelihood, nor do they unreasonably impose limitations on Executive's ability to earn a living. In addition, Executive agrees and acknowledges that the potential harm to the Company and/or its affiliates of the non-enforcement of this Section 6 and/or the Proprietary Rights Agreement outweighs any potential harm to Executive of its enforcement by injunction or otherwise. In addition, Executive acknowledges that he has carefully read this Agreement and has given careful consideration to the restraints imposed upon Executive by this Agreement and is in full accord as to their necessity for the reasonable and proper protection of confidential and proprietary information of the Company now existing or to be developed in the future. Executive expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area.
7. Executive's Representations. Executive hereby represents and warrants to the Company that (i) the execution, delivery and performance of this Agreement by Executive do not and shall not conflict with, breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which Executive is a party or by which he is bound, (ii) Executive is not a party to or bound by any employment agreement, noncompete agreement, confidentiality agreement or other similar agreement with any other person or entity that would in any way limit or restrict Executive's ability to serve in the position of CFO of the Company and/or fulfill the duties and responsibilities as described under Section 2 herein, (iii) there are no events or circumstances involving Executive that by their nature and Executive's association with the Company would have a negative impact on the
reputation or valuation of the Company, and (iv) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding obligation of Executive, enforceable in accordance with its terms. Executive hereby acknowledges and represents that he has consulted with independent legal counsel regarding his rights and obligations under this Agreement and that he fully understands the terms and conditions contained herein.
8. Survival. This Agreement shall survive and continue in full force in accordance with its terms notwithstanding the termination of the Employment Period.
9. Notices. Any notice provided for in this Agreement shall be in writing and shall be either personally delivered, sent by reputable overnight courier service or mailed by first class mail, return receipt requested, to the recipient at the address below indicated:
Notices to Executive:
David B. Mullen
470 Buena Road
Lake Forest, Illinois 60045
Notices to the Company:
Navigation Technologies Corporation
222 Merchandise Mart, Suite 900
Chicago, Illinois 60654
Attention: Chief Executive Officer
With copies to the General Counsel and VPHuman Resources at the Same address
or such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party. Any notice under this Agreement shall be deemed to have been given when so delivered, sent or mailed.
10. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any action in any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.
11. Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith embody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.
12. No Strict Construction. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied against any party.
13. Counterparts. This Agreement may be executed in separate counterparts, each of which shall be deemed to be an original and all of which taken together constitute one and the same agreement.
14. Successors and Assigns. This Agreement is intended to bind and inure to the benefit of and be enforceable by Executive, the Company and their respective heirs, successors and assigns, except that Executive may not assign his rights or delegate his duties or obligations hereunder without the prior written consent of the Company.
15. Choice of Law. All issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement and the exhibits and schedules hereto shall be governed by, and construed in accordance with, the laws of the State of Illinois, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Illinois.
16. Amendment and Waiver. The provisions of this Agreement may be amended or waived only with the prior written consent of the Company (as approved by the Board) and Executive, and no course of conduct or course of dealing or failure or delay by any party hereto in enforcing or exercising any of the provisions of this Agreement (including, without limitation, the Company's right to terminate the Employment Period for Cause) shall affect the validity, binding effect or enforceability of this Agreement or be deemed to be an implied waiver of any provision of this Agreement.
(a) Except with respect to disputes and claims under Section 6 hereof (which may be pursued in any court of competent jurisdiction as specified below and with respect to which each party shall bear the cost of such party's own attorneys' fees and expenses, except to the extent otherwise required by applicable law), each party hereto agrees that arbitration, pursuant to the procedures set forth in the National Rules for the Resolution of Employment Disputes of the American Arbitration Association (as adopted and effective as of June 1, 1997 or such later version as may then be in effect) (the "AAA Rules"), shall be the sole and exclusive method for resolving any claim or dispute ("Claim") arising out of or relating to the rights and obligations of the parties under this Agreement and the employment of Executive by the Company (including, without limitation, claims and disputes regarding employment discrimination, sexual harassment, termination and discharge), whether such Claim arose or the facts on which such Claim is based occurred prior to or after the execution and delivery of this Agreement. The parties hereto agree that (i) one arbitrator shall be appointed pursuant to the AAA Rules to conduct any such arbitration, (ii) all meetings of the parties and all hearings with respect to any such arbitration shall take place in Chicago, Illinois, (iii) each party to the arbitration shall bear such party's own costs and expenses (including, without limitation, all attorneys' fees and expenses, except to the extent otherwise required by applicable law), (iv) all costs and expenses of the arbitration proceeding (such as filing fees, the arbitrator's fees, hearing expenses, etc.) shall be borne by the Company. The parties agree that the judgment, award or other determination of any arbitration under the AAA Rules shall be final, conclusive and binding on all of the parties hereto. Nothing in this Section 17 shall prohibit any party hereto from instituting litigation to enforce any final judgment, award or determination of the arbitration. Each party hereto hereby irrevocably submits to the jurisdiction of the federal and state courts sitting in Chicago, Illinois, and agrees that such courts shall be the exclusive forum for the enforcement of any such final judgment, award or determination of the arbitration. Each party hereto irrevocably consents to service of process by registered mail or personal service and waives any objection on the grounds of personal jurisdiction, venue or inconvenience of the forum. Each party hereto further agrees that each other party hereto may initiate litigation in any court of competent jurisdiction to execute any judicial judgment enforcing or not enforcing any award, judgment or determination of the arbitration.
(b) Notwithstanding the foregoing, prior to any party hereto instituting any arbitration proceeding hereunder to resolve any Claim, such party first shall submit the Claim to a mediation proceeding between the parties hereto which shall be governed by the prevailing procedures of the American Arbitration Association and shall be conducted in Chicago, Illinois. If the parties hereto have not agreed in writing to a resolution of the Claim pursuant to the mediation within 45 days after the commencement thereof or if any party refuses to participate in the mediation process, then the Claim may be submitted to arbitration under Section 17(a) above. Each party hereto shall bear such party's own costs and expenses incurred in connection with the mediation, and all costs and expenses of the mediation proceeding shall be borne equally by the parties hereto.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement as of the date first written above.
|NAVIGATION TECHNOLOGIES CORPORATION|
/s/ JUDSON C. GREEN
President and CEO
/s/ DAVID B. MULLEN
David B. Mullen
I, David B. Mullen, in consideration of and subject to the performance by Navigation Technologies Corporation, a Delaware corporation (together with its subsidiaries, the "Company"), of its material obligations under the Employment Agreement, dated as of October 1, 2002 (the "Agreement"), do hereby release and forever discharge as of the date hereof the Company and all present and former directors, officers, agents, representatives, employees, successors and assigns of the Company and its direct or indirect owners (collectively, the "Released Parties") to the extent provided below.
BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:
|DATE:|| ,|| || |
David B. Mullen