Employment Agreement - EDGAR Online Inc. and Albert E. Girod
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made as of October 1, 2000 (the "Effective Date"),
between EDGAR Online, Inc. ("EOL"), FIS Acquisition Corp. ("Acquisition Corp.")
with their principal offices at 50 Washington Street, Norwalk, Connecticut (EOL
and Acquisition Corp are sometimes hereinafter collectively referred to as the
"Company"), and Albert E. Girod having an address at 11200 Rockville Pike; Suite
310, Rockville, MD 20852 ("Employee").
W I T N E S S E T H:
WHEREAS, EOL operates an Internet financial information business; and
WHEREAS, EOL, Financial Insight Systems, Inc ("FIS"), Acquisition Corp.
and certain principal stockholders, including Employee, have entered into an
agreement (the "Merger Agreement") pursuant to which FIS is being merged with
and into Acquisition Corp.; and
WHEREAS, it is a condition to the consummation of the Merger Agreement
that the Company and the Employee enter into this employment agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements hereinafter set forth, the parties agree as follows:
1. Employment. The Company shall employ the Employee and the Employee
shall serve the Company, upon the terms and conditions hereinafter set forth.
2. Term. The term of the Employee's employment shall commence on the
Effective Date and unless terminated earlier or extended as provided below,
shall continue for a period of two years from the Effective Date (the
"Employment Term"). Upon the expiration of the initial
Page 1 of 13
<PAGE> 2
employment term and on each anniversary date thereafter, the employment of
Employee shall be renewed and extended for an additional year unless either
party provides written notice to the other party, of his or its, as the case may
be, desire to terminate this Agreement at least thirty (30) days prior to the
renewal date.
3. Duties. During the Employment Term, the Employee shall have such
duties, functions, authority and responsibilities normally associated with the
positions and offices of Executive Vice President and Chief Technology Officer
of EOL. In addition, the Employee shall serve as the Chief Executive Officer of
Acquisition Corp. In such capacities, the Employee shall report directly to the
President or Chief Executive Officer of EOL. During the Employment Term, the
Employee shall devote his full attention and business time to the business and
affairs of the Company and the Employee will use his best efforts to perform
faithfully and efficiently, and to discharge, the Employee's responsibilities
and duties under this Agreement. Notwithstanding the foregoing, the Employee may
devote such time to manage his personal affairs and to serve on community,
corporate, civic, professional or charitable boards or committees, so long as
such activities do not unreasonably interfere with the performance of the
Employee's duties and responsibilities under this Agreement.
4. Compensation and Employee Benefits.
(a) The Employee's base salary during the initial term of
employment shall be no less than $150,000 commencing on the Effective Date
payable in accordance with the Company's payroll practices as in effect from
time to time. The Employee's base salary will be reviewed annually by the
Company's Board of Directors (the "Board") to determine whether an increase is
warranted or appropriate. The Employee also will be entitled to be considered
for
Page 2 of 13
<PAGE> 3
awards each year under the Company's then existing incentive compensation
program, which may take into account individual and Company-wide performance, or
such other performance criteria as the Board may from time to time apply.
5. Benefits. During the Employment Term, and for a period of five years
from termination, the Employee shall have the right to participate in such
health and disability insurance plans which the Company provides to its senior
executive officers and for which the Employee is eligible, the premiums of which
shall be paid by the Company (e.g., long term disability, life insurance and
medical insurance for the Employee and his dependents; provided however that the
five year post-termination coverage shall apply only to Employee and Employee's
spouse). During the initial employment term Employee will be entitled to a
supplemental term life insurance policy in the face amount of $1 million payable
to the beneficiary of Employee's choice. Premiums for said policy to be paid by
the Company. During the Employment Term, the Employee will be entitled four
weeks of paid vacation in accordance with the Company's policy. Such vacation
may be taken in the Employee's discretion with the prior approval of the
Company, and at such time or times as are not inconsistent with the reasonable
business needs of the Company.
6. Business Expenses. All reasonable travel, entertainment and other
expenses incident to the performance of the Employee's duties or the rendering
of services incurred on behalf of the Company by the Employee during the
Employment Term shall be paid by the Company. Employee will have exclusive use
of a Company car, which will be purchased or leased within six months of the
Effective Date. Upon termination of this Agreement for any reason, Employee has
the right, if applicable, to purchase the car from the Company at fair
Page 3 of 13
<PAGE> 4
market value.
7. Termination. Notwithstanding the provisions of Section 2 hereof, the
Employee's employment with the Company may be earlier terminated as follows:
(a) By action taken by the Board, the Employee may be
discharged for cause (as defined below), effective as of such time as the Board
shall determine. Upon discharge of the Employee pursuant to this Section 7(a),
the Company shall have no further obligation or duties to the Employee, except
for payment of (i) the medical benefits set forth in Section 5 hereof and (ii)
accrued salary, bonus and benefits payable to the Employee through the date of
termination of employment, and the Employee shall have no further obligations or
duties to the Company, except as provided in Section 8.
(b) In the event of (i) the death of the Employee or (ii) by
action of the Board in the event of the inability of the Employee, by reason of
physical or mental disability, to continue substantially to perform his duties
hereunder for an aggregate period of 180 days during the Employment Term, during
which 180 day period salary and any other benefits hereunder shall not be
suspended or diminished. Upon any termination of the Employee's employment under
this Section 7(b), the Company shall have no further obligations or duties to
the Employee, except for payment of (i) the medical benefits set forth in
Section 5 hereof and (ii) accrued salary, bonus and benefits payable to the
Employee through the date of termination of employment, and the Employee shall
have no further obligations or duties to the Company, except as provided in
Section 8.
(c) In the event that there is a change of control of the
Company (as defined below), and the Agreement is terminated by either the
Employee or the Company within
Page 4 of 13
<PAGE> 5
one year of such a change of control, the Company shall pay to the Employee, in
addition to the payment of (i) the value of the benefit discussed in Section 5
hereof and (ii) accrued salary, bonus and benefits payable to the Employee
through the date of termination of employment, a severance payment from the
Company equal to the product of 2.00 times the sum of (x) the Employee's then
applicable annual base salary and (y) the average of the last two year's cash
bonuses paid by the Company to the Employee. In addition, all stock options and
other awards under the Company's stock option plans shall immediately vest and
remain exercisable for the a period of the lesser of (i) the original term of
the stock option and (ii) five years.
(d) For purposes of this Agreement, the Company shall have
"cause" to terminate the Employee's employment under this Agreement upon (i) the
failure by the Employee to substantially perform his duties under this
Agreement, (ii) the engaging by the Employee in criminal misconduct (including
embezzlement and criminal fraud) which is materially injurious to the Company,
monetarily or otherwise, (iii) the conviction of the Employee of a felony, or
(iv) gross negligence (as hereafter defined) on the part of the Employee. "Gross
negligence" means an intentional act of the Employee in reckless disregard of a
known risk as to make it highly probable that harm to the Company would follow.
The Company shall give written notice to the Employee, which notice shall
specify the grounds for the proposed termination and the Employee shall be given
thirty (30) days to cure if the grounds arise under clause (i) above.
(e) For purposes of this Agreement, a "change of control of
the Company" shall mean the occurrence of (i) the acquisition by an individual,
entity, or group of the beneficial ownership of 50% or more (other than by Marc
and Susan Strausberg and their affiliates) of (1)
Page 5 of 13
<PAGE> 6
the outstanding common stock, or (2) the combined voting power of the Company's
voting securities; provided, however, that the following acquisitions will not
constitute a "change of control": (x) any acquisition by any employee benefit
plan of the Company or any affiliate or (y) any acquisition by any corporation
if, immediately following such acquisition, more than 50% of the outstanding
common stock and the outstanding voting securities of such corporation is
beneficially owned by all or substantially all of those who, immediately prior
to such acquisition, were the beneficial owners of the common stock and the
Company's voting securities (in substantially similar proportions as their
ownership of such Company securities immediately prior thereto); or (ii) the
approval by the Company's stockholders of a reorganization, merger or
consolidation, other than one with respect to which all or substantially all of
those who were the beneficial owners, immediately prior to such reorganization,
merger or consolidation, of the Common Stock and the Company's voting securities
beneficially own, immediately after such transaction, more than 50% of the
outstanding common stock and voting securities of the corporation resulting from
such transaction (in substantially the same proportions as their ownership,
immediately prior thereto, of the Common Stock and the Company's voting
securities); or (iii) the approval by the Company's stockholders of the sale or
other disposition of all or substantially all of the assets of the Company,
other than to a subsidiary of the Company
8. Confidentiality; Noncompetition.
(a) The Company (which for purposes of this Section 8 includes
EOL, Acquisition Corp. and any of EOL's presently existing and hereinafter
formed subsidiaries) and the Employee acknowledge that the services to be
performed by the Employee under this Agreement are unique and extraordinary and,
as a result of such employment, the Employee will be in
Page 6 of 13
<PAGE> 7
possession of confidential information relating to the business practices of the
Company. The term "confidential information" shall mean any and all information
(oral or written) relating to the Company or any of its affiliates, or any of
their respective activities, other than such information which can be shown by
the Employee to be in the public domain (such information not being deemed to be
in the public domain merely because it is embraced by more general information
which is in the public domain) other than as the result of breach of the
provisions of this Section 8(a), including, but not limited to, information
relating to: trade secrets, proprietary information, personnel lists, financial
information, research projects, services used, pricing, customers, customer
lists and prospects, product sourcing, marketing and selling and servicing. The
Employee agrees that he will not, during his employment or subsequent to the
termination of employment, directly or indirectly, use, communicate, disclose or
disseminate to any person, firm or corporation any confidential information
acquired by the Employee during his employment by Company, without the prior
written consent of Company; provided, however, that the Employee understands
that Employee will be prohibited from misappropriating any trade secret at any
time during or after the termination of employment. At no time during the
Employment Term, or thereafter shall the Employee directly or indirectly,
disparage the commercial, business or financial reputation of the Company.
(b) In consideration of Company's hiring Employee, the payment
by the Company to the Employee as described below and for other good and
valuable consideration, the Employee hereby agrees that he shall not, during the
Employment Term and for a period of one (1) year following such employment (the
"Restrictive Period"), directly or indirectly, take any action which constitutes
an interference with or a disruption of any of the Company's
Page 7 of 13
<PAGE> 8
business activities.
(c) For purposes of clarification, but not of limitation, the
Employee hereby acknowledges and agrees that the provisions of subparagraph 8(b)
above shall serve as a prohibition against him, during the Restrictive Period:
(1) directly or indirectly, contacting, soliciting or
directing any person, firm, or corporation to contact or solicit, any
of the Company's customers, prospective customers, or business partners
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 Restrictive Period.
In addition, the Employee will not disclose the identity of any such
business partners, customers, or prospective customers, or any part
thereof, to any person, firm, corporation, association, or other entity
for any reason or purpose whatsoever; and
(2) directly or indirectly, engaging or carrying on in any
manner (including, without limitation, as principal, shareholder,
partner, lender, agent, employee, consultant, or investor (other than a
passive investor with less than a five percent (5%) interest) trustee
or through the agency of any corporation, partnership, limited
liability company, or association) in any business that is in
competition with the business or proposed businesses of the Company;
and
(3) soliciting on his own behalf or on behalf of any other
person, the services of any person who is an employee of the Employer,
and soliciting any of the Employer's employees to terminate employment
with the Employer.
Page 8 of 13
<PAGE> 9
(d) Upon the termination of the Employee's employment for any
reason whatsoever, all documents, records, notebooks, equipment, price lists,
specifications, programs, customer and prospective customer lists and other
materials which refer or relate to any aspect of the business of the Company
which are in the possession or under the control of the Employee including all
copies thereof, shall be promptly returned to the Company. The Company and
Employee, however, agree that any furniture and office decor in the office
occupied by Employee on the Effective Date is the personal property of Employee
and may be removed by him upon termination of this Employment Agreement.
Notwithstanding anything contained herein to the contrary, upon termination of
Employee's employment for any reason whatsoever, Employee shall be permitted to
contact or solicit any of the Company's customers or business partners for the
purpose of selling or attempting to sell, any products and/or services if, and
only if, such products and services then being sold by him are not competitive
with the products and/or services provided by or proposed to be provided by the
Company.
(e) The parties hereto hereby acknowledge and agree that (i)
the Company would be irreparably injured in the event of a breach by the
Employee of any of his obligations under this Section 8, (ii) monetary damages
would not be an adequate remedy for any such breach, and (iii) the Company shall
be entitled to injunctive relief, in addition to any other remedy which it may
have, in the event of any such breach.
(f) The rights and remedies enumerated in Section 8(e) shall
be independent of the other, and shall be enforceable, and all of such rights
and remedies shall be in addition to, and not in lieu of, any other rights and
remedies available to the Company under law or in equity.
Page 9 of 13
<PAGE> 10
(g) If any provision contained in this Section 8 is hereafter
construed to be invalid or unenforceable, the same shall not affect the
remainder of the covenant or covenants, which shall be given full effect,
without regard to the invalid portions.
(h) If any provision contained in this Section 8 is found to
be unenforceable by reason of the extent, duration or scope thereof, or
otherwise, then the court making such determination shall have the right to
reduce such extent, duration, scope or other provision and in its reduced form
any such restriction shall thereafter be enforceable as contemplated hereby.
(i) It is the intent of the parties hereto that the covenants
contained in this Section 8 shall be enforced to the fullest extent permissible
under the laws and public policies of each jurisdiction in which enforcement is
sought (the Employee hereby acknowledging that said restrictions are reasonably
necessary for the protection of the Company). Accordingly, it is hereby agreed
that if any of the provisions of this Section 8 shall be adjudicated to be
invalid or unenforceable for any reason whatsoever, said provision shall be
(only with respect to the operation thereof in the particular jurisdiction in
which such adjudication is made) construed by limiting and reducing it so as to
be enforceable to the extent permissible, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of said
provision in any other jurisdiction.
9. Prior Agreements. This Agreement cancels and supersedes any and all
prior agreements and understandings between the parties hereto respecting the
employment of Employee by the Company.
10. Notices. All notices, requests, demands and other communications
hereunder
Page 10 of 13
<PAGE> 11
shall be in writing and shall be delivered personally or sent by registered or
certified mail, return receipt requested, to the other party hereto at his or
its address as set forth in the beginning of this Agreement. Either party may
change the address to which notices, requests, demands and other communications
hereunder shall be sent by sending written notice of such change of address to
the other party in the manner above provided.
11. Assignability and Binding Effect. This Agreement shall inure to the
benefit of and shall be binding upon the executors, administrators, successors
and legal representatives of Employee and shall inure to the benefit of and be
binding upon the Company and its successors and assigns. The Employee may not
delegate or assign his duties or rights under this Agreement.
12. Waiver. Waiver by either party hereto of any breach or default by
the other party in respect of any of the terms and conditions of this Agreement
shall not operate as a waiver of any other breach or default, whether similar to
or different from the breach or default waived.
13. Complete Understanding: Amendment and Termination. This Agreement
constitutes the complete understanding between the parties with respect to the
employment of Employee hereunder and no statement, representation, warranty or
covenant has been made by either party with respect thereto except as expressly
set froth herein. This Agreement shall not be altered, modified, amended or
terminated except by written instrument signed by each of the parties hereto
provided, however, that the waiver by either party hereto of compliance with any
provision hereof or of any breach or default by the other party hereto need be
signed only by the party waiving such provision, breach or default.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which taken together
shall constitute one and the
Page 11 of 13
<PAGE> 12
same Agreement.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Connecticut.
16. Paragraph Headings. The paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
17. Consideration. Employee hereby acknowledges and agrees that the
employment opportunity encompassed in this Agreement is contingent upon the
execution of this Agreement and that such employment, in addition to the mutual
promises herein, constitutes adequate consideration for this Agreement.
Page 12 of 13
<PAGE> 13
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
EDGAR ONLINE, INC.
By: /s/ Tom Vos
_______________________________
Its: President and Chief Operating Officer
Date: _________________
FIS ACQUISITION CORP.
By: /s/ Tom Vos
______________________________
Its: Vice President
Date: _________________
/s/ Albert E. Girod
___________________________
Albert E. Girod
Date: _________________
Page 13 of 13