Employment Agreement - DBT Online Inc. and Colonel Frank Borman
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), made this first day of
April, 1997, is entered into by DBT ONLINE, INC., a Pennsylvania corporation
with its principal place of business at 5550 W. Flamingo Road, Suite B-5, Las
Vegas, Nevada 89103 (the "Company") and Colonel Frank Borman, residing at 6605
Butterfield Ridge Road, Las Cruces, New Mexico 88005 (the "Employee").
The Company desires to employ the Employee, and the Employee desires
to be employed by the Company. In consideration of the mutual covenants and
promises contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
the parties agree as follows:
1. Term of Employment. The Company hereby agrees to employ the
Employee, and the Employee hereby accepts employment with the Company, upon the
terms set forth in this Agreement, for the period commencing effective April 1,
1997 (the "Commencement Date"), and ending on the third anniversary of the
Commencement Date (such period, as it may be extended as set forth below, the
"Employment Period"). The Employment Period automatically shall be extended by
one year at the expiration of each year within the Employment Period (as
extended) in which neither the Company nor the Employee provides the other
party hereto with written notice that this Agreement shall not be renewed at
the end of the then applicable Employment Period. Accordingly, the Employment
Period hereunder shall be three years from each ensuing anniversary date,
unless the foregoing written notice of non-renewal had theretofore been
transmitted by one party to the other.
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2. Title: Capacity. The Employee shall serve as Chairman. The Employee
shall be based in Las Cruces, New Mexico. The Employee shall be subject to the
supervision of, and shall have such authority as is delegated to him by the
Board. The Employee hereby accepts such employment and agrees to undertake the
duties and responsibilities inherent in such position and such other duties and
responsibilities as the Board shall from time to time assign to him. The
Employee agrees to devote his full business time, attention and energies to the
business and interests of the Company during the Employment Period. The Company
deems it to be consistent with this commitment that Employee continue his
involvements with other business activities described in Schedule 1 hereto, none
of which shall interfere with the spending by Employee of a full-time work week
on the affairs of the Company, and such future business activities as may be
approved by the Board of Directors.
3. Compensation and Benefits.
3.1 Salary. The Company shall pay the Employee, in
installments, consistent with past practice, an annual salary of $160,000.
3.2 Fringe Benefits. The Employee will be provided with
such fringe benefits and vacation time as have been provided prior to the date
hereof, as specifically described in Schedule 2.
3.3 Reimbursement of Expenses. The Company shall
reimburse the Employee for all reasonable travel, entertainment and other
expenses incurred or paid by the Employee in connection with, or related to, the
performance of his duties, responsibilities or
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services under this Agreement, in a manner consistent with past practice and
upon presentation by the Employee of documentation, expense statements,
vouchers and/or such other supporting information as the Company may request.
4. Employment Termination. The employment of the Employee by
the Company pursuant to this Agreement shall terminate upon the occurrence of
any of the following:
4.1 Expiration of the Employment Period in accordance
with Section 1;
4.2 At the election of the Company, for cause,
immediately upon written notice by the Company to the Employee. For the purposes
of this Section 4.2, cause for termination shall be deemed to exist upon (a)
breach by Employee of his obligations under this Agreement [except by reason of
disability, which is not a ground for termination hereunder], habitual
insobriety or drug dependency or (b) the conviction of the Employee of, or the
entry of a pleading of guilty or nolo contendere by the Employee to, any crime
involving moral turpitude or any felony.
4.3 The death of Employee.
5. Non-Compete.
(a) During the Employment Period and for a three-year period
following the date of termination or expiration of the Employment Period, the
Employee will not directly or indirectly:
(i) as an individual proprietor, partner,
stockholder, officer, employee, director, joint venturer,
investor, lender, or in any other capacity whatsoever (other
than as the holder of not more than one percent (1%) of the
total
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outstanding stock of a publicly held company), engage in the
business competitive with that of the Company, existing or
contemplated at the time of the expiration or termination
hereunder,
(ii) acting as an employee or consultant of any
licensee of the Company with respect to matters which are
subject of the license,
(iii) recruit, solicit or induce, or attempt to
induce, any employee or employees of the Company to terminate
their employment with, or otherwise cease their relationship
with, the Company, or
(iv) solicit, divert or take away, or attempt to
divert or to take away, the business or patronage of any of
the clients, customers or accounts, or prospective clients,
customers or accounts, of the Company which were contacted,
solicited or served by the employee while employed by the
Company.
(b) If any restriction set forth in this Section 6 is found by
any court of competent jurisdiction to be unenforceable because it extends for
too long a period of time or over too great a range of activities or in too
broad a geographic area, it shall be interpreted to extend only over the maximum
period of time, range of activities or geographic area as to which it may be
enforceable.
(c) The restrictions contained in the Section 6 are necessary
for the protection of the business and goodwill of the Company and are
considered by the Employee to be reasonable for such purpose. The Employee
agrees that any breach of this Section 5 will cause the Company substantial and
irrevocable damage and therefore, in the event of such breach, in addition to
such other remedies which may be available, the Company shall have the right to
seek specific performance and injunctive relief.
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6. Proprietary Information.
(a) Employee agrees that all information and know-how, whether
or not in writing, of a private, secret or confidential nature concerning the
Company's business or financial affairs (collectively, "Proprietary
Information") is and shall be the exclusive property of the Company. By way of
illustration, but not limitation, Proprietary Information may include
inventions, products, processes, methods, techniques, formulas, compositions,
compounds, projects, developments, plans, research data, clinical data,
financial data, personnel data, computer programs, and customer lists. Employee
will not disclose any Proprietary Information to others outside the Company or
use the same for any unauthorized purposes without written approval by the
members of the Executive Committee of the Board of Directors of the Company
other than Employee, either during or after his employment, unless and until
such Proprietary Information has become public knowledge without fault by the
Employee.
(b) Employee agrees that all files, letters, memoranda,
reports, records, data, sketches, drawings, laboratory notebooks, program
listings, or other written, photographic, or other tangible material containing
Proprietary Information, whether created by the Employee or others, which shall
come into his custody or possession, shall be and are the exclusive property of
the Company to be used by the Employee only in the performance of his duties
for the Company.
(c) Employee agrees that his obligation not to disclose or
use information, know-how and records of the types set forth in paragraphs (a)
and (b) above, also extends to such types of information, know-how, records and
tangible property of customers of the Company or suppliers to the Company or
other third parties who may have disclosed or entrusted the same to the Company
or to the Employee in the course of the Company's business.
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7. Notices. All notices required or permitted under this
Agreement shall be in writing and shall be deemed effective upon personal
delivery or upon deposit in the United States Post Office, by registered or
certified mail, postage prepaid, addressed to the other party at the address
shown above, or at such other address or addresses as either party shall
designate to the other in accordance with this Section 7.
8. Entire Agreement. This Agreement constitutes the entire
agreement between the parties and supersedes all prior agreements and
understandings, whether written or oral, relating to the subject matter of this
Agreement.
9. Amendment. This Agreement may be amended or modified only by
a written instrument executed by both the Company and the Employee.
10. Governing Law. This Agreement shall be construed, interpreted
and enforced in accordance with the laws of the State of New Mexico.
11. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of both parties and their respective successors and
assigns, including any corporation with which or into which the Company may be
merged or which may succeed to its assets or business, provided, however, that
the obligations of the Employee are personal and shall not be assigned by him.
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12. Miscellaneous.
12.1 No delay or omission by the Company in exercising any
right under this Agreement shall operate as a waiver of that or any other
right. A waiver or consent given by the Company on any one occasion shall be
effective only in that instance and shall not be construed as a bar or waiver
of any right on any other occasion.
12.2 The captions of the sections of this Agreement are
for convenience of reference only and in no way define, limit or affect the
scope or substance of any section of this Agreement.
12.3 In case any provision of this Agreement shall be
invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth above.
DBT ONLINE, INC.
By: /s/ J. HENRY MUETTERTIES
---------------------------------
J. Henry Muetterties
EMPLOYEE:
By: /s/ FRANK BORMAN
---------------------------------
Frank Borman
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SCHEDULE 1
Director
American Superconductor, Inc.
Borman Automotive Group
Outboard Marine Corporation
The Home Depot
Thermo Instrument Systems (subsidiary of Thermo Electron)
Trustee
National Geographic Society
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SCHEDULE 2
Fringe Benefits
Business Membership Reimbursements
The Business Council
The Las Cruces Forum
Health Insurance
Dental/Vision Insurance
Life Insurance