Employment Agreement - Real Information Systems Inc. and Robert N. Helmick
EMPLOYMENT AGREEMENT
DATE: May 1, 1997
PARTIES: Real Information Systems, Inc., a Colorado corporation (the "Company")
Robert N. Helmick, a resident of Colorado ("Employee")
RECITAL:
The Company is engaged in the business of online web production, online
education and online training business. The Company desires to employ and retain
the unique experience, abilities, and services of Employee as President and
Chief Executive Officer, of the Company's office in Denver, Colorado.
AGREEMENT:
The parties agree as follows:
SECTION 1. EMPLOYMENT
1.1 TERM. The Company agrees to employ Employee as its "President and
Chief Executive Officer" for a term commencing on May 1, 1997, and terminating
on December 31, 2000 (the "INITIAL TERM"), or until termination in accordance
with Section 5. The term of employment shall be renewed automatically for
successive periods of one (1) year each (a "RENEWAL TERM") after the expiration
of the Initial Term and any subsequent Renewal Term, unless the Company provides
the Employee, or the Employee provides the Company, with written notice to the
contrary at least thirty (30) days prior to the end of the Initial Term or any
Renewal Term.
1.2 DUTIES. Employee accepts employment with the Company on the terms and
conditions set forth in this Agreement, and agrees to devote his full time and
attention (reasonable periods of illness excepted) to the performance of his
duties under this Agreement. In general, such duties shall consist of
administration of the day to day operations of the Company's online web
production, online education and online training business, and act as liaison
between the Company and the Company's vendors. Employee shall perform such
specific duties and shall exercise such specific authority as may be assigned to
Employee from time to time by the President of the Company. In performing such
duties, Employee shall be subject to the direction and control of the President
of the Company. Employee further agrees that in all aspects of such employment,
Employee shall comply with the policies, standards, and regulations of the
Company established from time to time, and shall perform his duties faithfully,
intelligently, to the best of his ability, and in the best interest of the
Company. The devotion of reasonable periods of time by Employee for personal
purposes or charitable activities shall not be deemed a breach of this
Agreement, provided that such purposes or activities do not materially interfere
with the services required to be rendered to or on behalf of the Company;
however, any outside business activities that are not first submitted in writing
to the President of the Company, and approved by the President shall be deemed a
breach of this Agreement.
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SECTION 2. COVENANT NOT TO COMPETE; CONFIDENTIALITY
2.1 NONCOMPETITION. During the term of this Agreement and for a period of
12 months after the termination of employment with the Company for any reason,
Employee shall not, within the United States, directly or indirectly, (1) own
(as a proprietor, partner, stockholder, or otherwise) an interest in, or (2)
participate (as an officer, director, or in any other capacity) in the
management, operation, or control of, or (3) perform services as or act in the
capacity of an employee, independent contractor, consultant, or agent of any
enterprise engaged, directly or indirectly, in the online web production, online
education and online training business or in competition with any other business
conducted by the Company except with the prior written consent of the Company;
provided, however, that, for online web production business that is unrelated to
online education, including distance learning, the prohibition shall be the term
of this Agreement and for a period of 6 months after the termination of
employment with the Company for any reason, or, (4) directly or indirectly,
contact, solicit or direct any person, firm, or corporation to contact or
solicit, any of the Company's customers, prospective customers, or business
brokers for the purpose of selling or attempting to sell, any products and/or
services that are the same as or similar to the products and services provided
by the Company to its customers during the term hereof. In addition, the
Employee will not disclose the identity of any such business brokers, customers,
or prospective customers, or any part thereof, to any person, firm, corporation,
association, or other entity for any reason or purpose whatsoever; and solicit
or accept if offered to him, with or without solicitation, on his own behalf or
on behalf of any other person, the services of any person who is an employee of
the Company, nor solicit any of the Company's employees to terminate employment
with the Company, nor agree to hire any employee of the Company into employment
with himself or any company, individual or other entity.
2.2 CONFIDENTIALITY. Employee acknowledges and agrees that all product
specifications, product planning information, lists of the Company's customers
and suppliers, financial information, and other Company data related to its
business ("Confidential Information") are valuable assets of the Company.
Except for information that is a matter of public record, Employee shall not,
during the term of this Agreement or after the termination of employment with
the Company, disclose any Confidential Information to any person or use any
Confidential Information for the benefit of Employee or any other person, except
with the prior written consent of the Company.
2.3 IDEAS, INVENTIONS. The Employee recognizes and agrees that all ideas,
inventions, enhancements, plans, writings, and other developments or
improvements (the "INVENTIONS") conceived by the Employee, alone or with others,
during the term of his or her employment, whether or not during working hours,
that are within the scope of the Company's business operations or that relate to
any of the Company's work or projects, are the sole and exclusive property of
the Company. The Employee further agrees that (1) he will promptly disclose all
Inventions to the Company and hereby assigns to the Company all present and
future rights he has or may have in those Inventions, including without
limitation those relating to patent, copyright, trademark or trade secrets; and
(2) all of the Inventions eligible under the copyright laws are "work made for
hire." At the request of and without charge to the Company, the Employee will
do all things deemed by the Company to be reasonably necessary to perfect title
to the Inventions in the Company and to assist in obtaining for the Company such
patents, copyrights or other protection as may be provided under law and desired
by the Company, including but not limited to executing and signing any and all
relevant applications, assignments
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or other instruments. Notwithstanding the foregoing, the Company hereby notifies
the Employee that the provisions of this Section 2.3 shall not apply to any
Inventions for which no equipment, supplies, facility or trade secret
information of the Company was used and which were developed entirely on the
Employee's own time, unless (1) the Invention relates (i) to the business of the
Company, or (ii) to actual or demonstrably anticipated research or development
of the Company, or (2) the Invention results from any work performed by the
Employee for the Company.
2.4 RETURN OF DOCUMENTS. Employee acknowledges and agrees that all
originals and copies of records, reports, documents, lists, plans, drawings,
memoranda, notes, and other documentation related to the business of the Company
or containing any Confidential Information shall be the sole and exclusive
property of the Company, and shall be returned to the Company upon the
termination of employment with the Company or upon the written request of the
Company.
2.5 INJUNCTION. Employee agrees that it would be difficult to measure
damage to the Company from any breach by Employee of Section 2.1, 2.2, or 2.3
and that monetary damages would be an inadequate remedy for any such breach.
Accordingly, Employee agrees that if Employee shall breach or take steps
preliminary to breaching Section 2.1, 2.2, or 2.3, the Company shall be
entitled, in addition to all other remedies it may have at law or in equity, to
an injunction or other appropriate orders to restrain any such breach, without
showing or proving any actual damage sustained by the Company.
2.6 NO RELEASE. Employee agrees that the termination of employment with
the Company or the expiration of the term of this Agreement shall not release
Employee from any obligations under Section 2.1, 2.2, 2.3, 2.4 or 2.5.
SECTION 3. COMPENSATION
3.1 BASE COMPENSATION; BONUS COMPENSATION. In consideration of all
services to be rendered by Employee to the Company, the Company shall pay to
Employee compensation as described on Schedule A of this Agreement.
3.2 OTHER BENEFITS. The Company shall provide to Employee the
substantially similar benefits that the Company provides to all other employees
of the Company.
SECTION 4. EXPENSES
Employee shall be entitled to reimbursement from the Company for reasonable
expenses necessarily incurred by Employee in the performance of Employee's
duties under this Agreement, upon presentation of vouchers indicating in detail
the amount and business purpose of each such expense and upon compliance with
the Company's reimbursement policies established from time to time.
SECTION 5. TERMINATION
5.1 TERMINATION BY PRIOR NOTICE. At any time after December 31, 2000, the
employment of Employee by the Company may be terminated by either the Company or
Employee upon the giving of 20 days' prior written notice to the other party.
This Agreement
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may be terminated at any time upon the mutual written agreement of the Company
and Employee.
5.2 IMMEDIATE TERMINATION. The employment of Employee by the Company may
be terminated immediately in the sole discretion of the Board of Directors of
the Company upon the occurrence of any one of the following events:
5.2.1 After receiving written notice of conduct which is in violation
of policies, standards, and regulations of the Company as established from time
to time and reasonable period of time to correct the conduct, the Employee
willfully and continuously fails or refuses to comply, in a material manner,
with the policies, standards, and regulations of the Company;
5.2.2 Employee engages in fraud, dishonesty, or any other act of
material misconduct in the performance of Employee's duties on behalf of the
Company;
5.2.3 Employee fails to perform any material provision of this
Agreement to be performed by Employee, provided however, that if such breach can
be cured, the Employee will receive reasonable, written notice of breach and
opportunity to cure such breach;
SECTION 6. VACATION; ILLNESS
Subject to the prior approval by the Vice President of the Company,
Employee shall be entitled to one or more vacations, personal leave, and sick
days totaling 14 working days in each calendar year. Up to 5 days of unused
vacation, personal leave, and sick days time remaining at the end of any
calendar year may be carried over to the next calendar year. Additional days
shall reduce the compensation of Employee, and, unless such additional days are
approved by the President or the Vice President of Operations, they shall be
deemed a violation of policies, standards and regulations as described in
Section 5.2.1.
SECTION 7. FACILITIES AND PERSONNEL
Employee shall be provided a private office at the Company's executive
headquarters. The Company shall provide all other facilities, supplies, and
services as shall be required for the performance of Employee's duties under
this Agreement.
SECTION 8. REPRESENTATIONS AND WARRANTIES OF EMPLOYEE
Employee represents and warrants to the Company that there is no employment
contract or any other contractual obligation to which Employee is subject which
prevents Employee from entering into this Agreement or from performing fully
Employee's duties under this Agreement.
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SECTION 9. MISCELLANEOUS PROVISIONS
a. BINDING EFFECT. This Agreement shall be binding on and inure to
the benefit of the parties and their heirs, personal representatives,
successors, and assigns.
b. NOTICES. Any notice, election, waiver, consent, acceptance or
other communication required or permitted to be given under this Agreement shall
be in writing and shall be hand delivered, transmitted via fax, or sent via
nationally recognized third party delivery (such as Federal Express or UPS) for
next day delivery, addressed to the parties as follows:
If to Company:
--------------
Real Information Systems, Inc.
9000 E. Chenango Ave.
Greenwood Village, Colorado 80111
Fax: 1-303-779-9233
With a copy to:
--------------
John V. Helmick
General Counsel
10271 Mica Way
Parker, CO 80134
Fax 1-303-841-8043
If to Employee:
---------------
Robert N. Helmick
9000 E. Chenango Ave.
Greenwood Village, CO 80111
Any notice or other communication shall be deemed to be given at the date the
notice is hand delivered to the individual, the date the notice is sent via fax,
or the date following the date of deposit with any nationally recognized third
party delivery (such as Federal Express or UPS) for next day delivery to the
addressee. The addresses to which notices or other communications shall be sent
may be changed from time to time by giving written notice to the other party as
provided in this Paragraph.
c. AMENDMENTS. This Agreement may be amended only by an instrument
in writing executed by all the parties.
d. ENTIRE AGREEMENT. This Agreement (including the schedules) sets
forth the entire understanding of the parties with respect to the subject matter
of this Agreement and supersedes any and all prior understandings and
agreements, whether written or oral, between the parties with respect to such
subject matter.
e. COUNTERPARTS. This Agreement may be executed by the parties in
separate counterparts, each of which when executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument. Fax signatures shall have the same effect as an original signature.
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f. SEVERABILITY. If any provision of this Agreement shall be
invalid or unenforceable in any respect for any reason, the validity and
enforceability of any such provision in any other respect and of the remaining
provisions of this Agreement shall not be in any way impaired; provided,
however, that the parties will attempt to agree upon a valid and enforceable
provision which shall be a reasonable substitute for each invalid provision or
unenforceable provision in light of the tenor of this Agreement and, upon so
agreeing, shall incorporate such substitute provision into this Agreement.
g. WAIVER. A provision of this Agreement may be waived only by a
written instrument executed by the party waiving compliance. No waiver of any
provision of this Agreement shall constitute a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a continuing waiver.
Failure to enforce any provision of this Agreement shall not operate as a waiver
of such provision or any other provision.
h. FURTHER ASSURANCES. From time to time, each of the parties shall
execute, acknowledge, and deliver any instruments or documents necessary to
carry out the purposes of this Agreement.
i. NO THIRD-PARTY BENEFICIARIES. Nothing in this Agreement, express
or implied, is intended to confer on any person, other than the parties to this
Agreement, any right or remedy of any nature whatsoever.
j. EXPENSES. Except as otherwise provided herein, each party shall
bear its own expenses in connection with this Agreement and the transactions
contemplated by this Agreement.
k. EXHIBITS. The exhibits and schedules referenced in this
Agreement are a part of this Agreement as if fully set forth in this Agreement.
l. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the United States of America and the State of
Colorado.
m. ARBITRATION.
(1) Any controversy or claim arising out of or relating to this
Agreement, including, without limitation, the making, performance, or
interpretation of this Agreement, shall be settled by arbitration.
(2) The parties may chose an arbitrator and rules of arbitration
by mutual agreement. Unless the parties agree otherwise, the arbitration shall
be conducted in Denver, Colorado in accordance with the then-current Commercial
Arbitration Rules of the American Arbitration Association. The arbitration shall
be held before a single arbitrator (unless otherwise agreed by the parties). The
arbitrator shall be chosen from a panel of attorneys knowledgeable in the field
of business law in accordance with the then-current Commercial Arbitration Rules
of the American Arbitration Association and judgment upon the award of the
arbitrator may be entered in any court having jurisdiction thereof and any party
to the arbitration may, if it so elects, institute proceedings in any court
having jurisdiction for the specific performance of any such award. The powers
of the arbitrator shall include the granting of injunctive relief. If the
arbitration is commenced, the parties agree to permit reasonable discovery
proceedings as
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determined by the arbitrator, including production of material documents,
accounting of sources and uses of funds, interrogatories and the deposition of
each party and any witness proposed by either party.
(3) The parties agree that the arbitrator shall have no
jurisdiction to consider evidence with respect to or render an award or judgment
for punitive damages (or any other amount awarded for the purpose of imposing a
penalty), incidental or consequential damages.
(4) The arbitrator shall award all costs of the arbitration,
including arbitrator's fees, arbitration filing fees, travel costs of witnesses,
costs of depositions and reasonable attorney fees to the substantially
prevailing party.
(5) The arbitrator shall determine a schedule for the
arbitration proceedings such that a final determination of the matter submitted
to the arbitrator can be rendered and delivered to the parties within 150 days
following the date that a demand for arbitration is filed.
(6) The parties agree that all facts and other information
relating to any arbitration arising under this Agreement shall be kept
confidential to the fullest extent permitted by law.
REAL INFORMATION SYSTEMS, INC.
By: /s/ Jonathan Dorbin
---------------------------------------
Jonathan Dobrin, Vice President
/s/ Robert N. Helmick
------------------------------------------
Robert N. Helmick, Individually
ATTACHMENTS: -- SCHEDULE A: COMPENSATION
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SCHEDULE A
COMPENSATION
1. Employee has not received any compensation since the founding of the
Company; therefore compensation for all services provided to the Company
through May 31, 1997 shall be by discharge of the indebtedness of $130,050
incurred by Employee to purchase common stock of the Company on or about
February 28, 1997.
2. For the period June 1, 1997 through July 31, 1998 compensation to the
Employee shall be at the rate of $120,000 per year, payable on the
Company's normal payroll dates.
3. Employee base compensation for the all periods after July 31, 1998, shall
be at the rate as set by the Compensation Committee of the Company, payable
on the Company's normal payroll dates.
4. Employee bonus compensation, in cash, Company stock, or other consideration
may be provided to Employee as determined from time to time by the Board of
Directors or the President of the Company; the Company has no requirement
to provide Employee with bonus compensation of any type.