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EXHIBIT 10.9
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 1st day of May, 1999 by and between
BDS BUSINESS CENTER, INC., a Connecticut corporation (the "COMPANY"), and Xxxxx
Xxxxxxx with a current address at Simsbury, CT (the "EMPLOYEE").
WITNESSETH:
WHEREAS, the Company desires to enter into an employment relationship
with the Employee on the terms and conditions as set forth herein; and
WHEREAS, during the course of the Employee's employment with the
Company, the Employee will have access to certain confidential and proprietary
information of the Company;
WHEREAS, the Company's confidential and proprietary information is
highly valuable and its disclosure would cause serious harm to the Company;
WHEREAS, competition by the Employee against the Company could cause
serious and irreparable harm to the Company; and
WHEREAS, the Employee is willing to accept such employment and to
protect the Company's confidential and proprietary information and competitive
advantage on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and promises
set forth in this Agreement and intending to be legally bound, the Employee and
the Company covenant and agree as follows:
1. Definitions.
As used in this Agreement:
A. "ACCOUNT INFORMATION" means names, addresses, contact
persons, purchasing histories and prices, credit standing and other information
relating to the Company's customers or prospective customers and their
personnel.
B. "CONFIDENTIAL INFORMATION" means Account Information, and
any information concerning the organization, business or finances of the Company
or of any third party which the Company is under an obligation to keep
confidential and that is maintained by the Company as confidential including,
but not limited to, trade secrets or confidential information respecting,
current, past, potential or prospective customers or clients, customer lists,
finances, business plans, projects, plans, proposals, pricing, costs, profits,
markets, products, services, designs, methods, techniques, know-how and
show-how, database information systems, processes, engineering data, software
programs, works of authorship, innovations, the Company's own internal practices
and procedures, technologies, developments, inventions or
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improvements, or any other information, or trade secrets and proprietary
information belonging to or developed by the Company.
C. "PROSPECT" means any prospective customer or client to whom
the Company has provided a proposal within the six (6) months prior to the
Employee's termination.
2. Employment. The Company hereby employs the Employee and the Employee
accepts employment upon the terms and conditions contained herein.
3. Duties. The Employee is engaged by the Company to serve as Chief
Financial Officer and shall perform those duties set forth in the Job
Description annexed hereto as EXHIBIT A and/or such other duties as the Chief
Executive Officer or any officer of the Company assigned by the Chief Executive
Officer to supervise the Employee may direct from time to time. The Employee
shall be subject to the direction and control of the Chief Executive Officer of
the Company or any officer assigned by the Chief Executive Officer in performing
his duties under this Agreement.
4. Extent of Service. The Employee shall devote his full time and
attention to the advancement of the interests and business of the Company, and
shall be permitted to engage in other business ventures only during non-business
hours and only to the extent it does not affect the performance of the
Employee's duties hereunder. The Employee shall work the number of hours
required for the reasonable standards of performance of the Employee's duties
hereunder.
5. Employment Term. The term of employment will commence on the date
hereof and continue until terminated pursuant to Section 7 of this Agreement.
6. Compensation. For services rendered by the Employee to the Company
under this Agreement, the Company shall pay compensation to the Employee in the
manner and form as set forth in EXHIBIT B attached hereto. Such compensation may
be modified from time to time thereafter by the Chairman or the Board of
Directors of the Company in his or its sole discretion upon ten (10) calendar
days prior written notice to the Employee.
7. Termination. Employment of the Employee under this Agreement will be
terminated as follows:
A. Automatically, by the Employee's death.
B. If the Employee becomes incapacitated or disabled. For the
purposes of this Agreement, the Employee shall be deemed to have become
incapacitated or disabled if the Employee is unable to perform the essential
functions of his job without reasonable accommodation. Any accommodation will
not be deemed reasonable if it imposes an undue hardship on the Company. If the
Employee becomes incapacitated or disabled, then the Company may, upon written
notice to the Employee, terminate the Employee's employment hereunder, but the
Employee may continue to be eligible to receive any benefits to which he may be
entitled in accordance with, and subject to, the terms, conditions and
limitations of any long-term disability plan or insurance policy maintained by
the Company for its employees. In the
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event of such incapacity or disability, the Company shall continue to pay full
compensation to the Employee until the date of such termination.
C. By mutual agreement of the Employee and the Company.
D. By the Employee or the Company, without cause, at any time
upon thirty (30) calendar days' prior written notice to the other party. The
Company may elect to provide the Employee with the compensation due to the
Employee under Section 6 in lieu of any notice requirement.
E. Immediately by the Company for cause.
Upon termination of employment of the Employee under this
Agreement, the Company shall pay the Employee the compensation that is due to
the Employee pursuant to Section 6 through the date of termination and the
Employee shall resign from all positions held in the Company, including without
limitation any position as a director, officer, agent, employee or trustee of
the Company or any affiliate of the Company. The Company shall have no other
obligations to the Employee except as required by applicable law.
For purposes of this Section, the term "CAUSE" shall mean (i) theft,
embezzlement or other felonious criminal activity; (ii) the willful or
intentional misconduct of the Employee; (iii) the dereliction of duties and
responsibilities of the Employee to the Company, after prior written notice from
the Company to the Employee, which notice specifies the conduct which will be
the basis for cause if not cured within fifteen (15) calendar days from the date
of notice; (iv) the use of illegal drugs; and (v) the violation by the Employee
of the provisions of Section 10, 11, 12, 13, 14 or 15 of this Agreement.
8. Employee Benefits. The Employee will be entitled to participate on
the same general basis and subject to the same rules and regulations as other
similar level employees of the Company in the Company's employee benefit plans
as such benefits or plans may be modified or terminated from time to time.
9. Business Expenses. The Company shall pay or reimburse the Employee
for all reasonable and necessary travel, entertainment and other business
expenses incurred by the Employee in the performance of his duties under this
Agreement, upon presentation of expense statements or other supporting
information as the Company may from time to time request; provided, however,
that the Employee shall comply with all applicable policies of the Company
relating to reimbursement for business expenses.
10. Non-Competition. The Employee acknowledges that because of the
unique nature of his services to the Company and the nature of the Confidential
Information which he will acquire, his employment with a competitor would
irreparably damage the Company. Therefore, the Employee agrees to the following
non-competition restrictions.
A. During the period of Employee's employment, Employee will not,
directly or indirectly, alone or as a partner, proprietor, joint venturer,
officer, employee, consultant,
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independent contractor or stockholder (other than ownership by the Employee of
less than 1% of the equity security of any publicly-traded Company) of any
entity engage in any business activity that is in competition with the products
or services being developed or sold by the Company.
B. For a period of six (6) months after Employee's termination of
employment with the Company for any reason whatsoever (the "Noncompetition
Period"), Employee agrees that he will not, directly or indirectly, alone or as
a partner, proprietor, joint venturer, officer, director, employee, consultant,
independent contractor or stockholder (other than ownership by the Employee of
less than 1% of the equity securities of any publicly-traded Company) of any
entity engage in any business activity that is in competition with the products
or services being developed or sold by the Company in: (i) the United States,
(ii) North America, and/or (iii) any place where the Company does business at
the time of Employee's termination of employment, PROVIDED, the Company, in its
sole discretion, decides to pay the Employee a Severance Payment as defined
below over the course of the Noncompetition Period. For the purposes of this
section, the Severance Payment is equal to, in the aggregate, one half of the
wages from the Company as reported on the Employee's Form W-2 for the year prior
to his termination not to exceed $125,000. The Severance Payment will be paid in
six equal monthly installments, in accordance with the Company's then current
payroll practices and be subject to all applicable federal, state and local
withholding and payroll taxes.
C. The Company and the Employee agree that the Noncompetition Period
shall be tolled for the length of time during which any of the restrictions are
violated and no further amounts other than the Severance Payment will be
required to be paid to the Employee in connection with such modification of the
Noncompetition Period.
11. Non-Solicitation. The Company has developed and has acquired, at
considerable expense, relationships with, and knowledge about, customers and
Prospects, which are a major part of the value of the Company. As an employee of
the Company, the Employee has substantial contact with these customers and
Prospects and access to Confidential Information about these customers and
Prospects. . Therefore, to protect the value of the Company's business, the
Employee agrees that he will not, either directly or indirectly, while employed
by the Company (except in the performance of his duties for and on behalf of the
Company) and for a period of one (1) year after the date of his termination of
employment (plus any additional time that he is in breach of this Section), in
any capacity whatsoever (either as an employee, officer, director, stockholder,
proprietor, partner, joint venturer, consultant, independent contractor or
otherwise):
A. solicit, sell to, divert, serve, contact, allow himself to
continue to be contacted and approached by, or accept consulting business from
any customer, client or Prospect of the Company: (i) who Employee handled,
serviced, solicited or had contact with, or (ii) who Employee had access to
Confidential Information about, or (iii) who Employee had learned or known the
identity of, or (iv) who anyone else affiliated with the Company, handled,
serviced, solicited or had contact with during the twelve (12) month period
immediately preceding the Employee's termination as an employee of the Company.;
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B. (i) employ; or (ii) solicit, induce, encourage, recruit or
attempt to employ any person who is or was employed by the Company, or is or was
an agent, representative, or consultant of the Company within the six months
prior to the termination of Employee's employment with the Company;
C. interfere with any of the Company's contracts or
relationships with any customer, client, vendor or supplier; or
D. disparage the Company or any of its officers, directors or
employees.
12. Confidential Information. A. Disclosure of Confidential
Information. As an employee of the Company, the Employee will learn and will
have access to Confidential Information. The Company developed this Confidential
Information at great expense, it is proprietary to the Company and it is and
shall remain the exclusive property of the Company. The Employee agrees not to,
without the express, written consent of the Company, either while employed by
the Company or thereafter, disclose, copy, make any use of, or remove from the
Company's premises the Confidential Information except as required in the
performance of the Employee's duties and responsibilities as an employee of the
Company. Upon the Employee's termination as an employee of the Company, the
Employee shall immediately deliver to the Company any Confidential Information
and all copies thereof, whether in hard copy, computerized or other form, which
the Employee has in his possession or control.
B. Competitive Use of Confidential Information. The Employee
hereby acknowledges that the Confidential Information is maintained as
confidential by the Company, is highly valuable and proprietary to the Company
and that the disclosure of any Confidential Information to third parties or
unauthorized use of the Confidential Information by the Employee could allow a
competitor of the Company to discover and understand the inner workings,
proprietary information and technology of the Company, use the Confidential
Information to the detriment of the Company and cause the Company serious
competitive harm. Accordingly, the Employee agrees not to, directly or
indirectly, use the Confidential Information in competition with the Company
until such time as such the Confidential Information shall have properly become
known to the general public without disclosure by the Employee.
C. Disclosure of Customer's Confidential Information. As an
employee of the Company, the Employee will learn and will have access to
confidential information, proprietary information and/or trade secrets of the
Company's customers and clients. The Employee agrees not to, without the
express, written consent of the Company, either while employed by the Company or
thereafter, disclose, copy, make any use of, or remove from the Company's
premises confidential information, proprietary information and/or trade secrets
of the Company's customers and clients except as required in the performance of
the Employee's duties and responsibilities as an employee of the Company.
13. Disclosure of Prior Agreements. The Employee represents that he has
disclosed to the Company any agreement, still in effect, which imposes any
restrictions on the Employee. The Employee represents that, except for those
restrictions, if any, specifically disclosed on EXHIBIT C to this Agreement, the
Employee is not subject to any restrictions arising from any
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previous employment. The Employee represents that his employment by the Company
pursuant to this Agreement does not violate any agreement, covenant or
obligation to which he is a party or by which he is bound.
14. Assignment of Inventions. The Employee agrees to disclose promptly
and fully to the Company and to no one else: (i) all inventions, ideas,
improvements, discoveries and works ("inventions") made or conceived by the
Employee, solely or jointly with others, during the period of his employment
which are related to the business of the Company and (ii) all inventions which
are related to the business of the Company and in which the Employee had an
assignable interest at the time of first employment by the Company. The
determination as to whether an invention is related to the business of the
Company will be made solely by the Chief Executive Officer of the Company. The
Employee also agrees to disclose any invention made using the Company's time,
materials or facilities, even if such invention does not relate to the business
of the Company. The "business of the Company" includes not only the actual
business currently conducted by the Company but also any business in which the
Company proposes to engage. The Employee hereby assigns to the Company all
right, title and interest, including tangible and intangible rights such as
patent rights, trademarks and copyrights, in and to all such inventions, and
agrees promptly to execute any further specific assignments related to such
inventions and rights at the request of the Company. The Employee also hereby
assigns to the Company, or waives if not assignable, all "moral rights" in and
to all such inventions, and agrees promptly to execute any further specific
assignments or waivers related to moral rights at the request of the Company.
The assignments will survive the termination of the employment relationship. The
Employee agrees to assist the Company without charge and for as long as may be
necessary (but at the Company's expense): (1) to obtain for the Company's
benefit, patents, trademarks, copyrights and other protection for such
inventions in all countries, and (2) in any controversy or legal proceeding
relating to inventions.
15. Non-Use of Third Party Confidential Information or Trade Secrets.
The Employee further represents that he has not disclosed and will not disclose
to the Company and has not used and will not use on the Company's behalf any
trade secrets or other confidential and proprietary information belonging to a
third party, without consent from that third party.
16. Remedies. The Employee recognizes that a breach by him of Sections
11, 12, 13, 14 or 15 of this Agreement will cause irreparable injury to the
Company inadequately compensable in damages and, accordingly, agrees that the
Company may seek and obtain an injunction, specific performance, or other
equitable relief against such breach or threatened breach, in addition to any
other legal remedies which may be available, including the recovery of monetary
damages from the Employee. In any action successfully brought by the Company
against the Employee to enforce the rights of the Company under Sections 11, 12,
13, 14 and 15 of this Agreement, the Company shall also be entitled to recover
from the Employee its reasonable attorneys' fees and costs of the action and the
post-employment period of the restriction shall be deemed to commence upon the
entry of the court's order for relief.
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17. Severability. The Company and the Employee agree that the terms
contained in this Agreement are reasonable in all respects and that the
restrictions contained herein are designed to ensure that the Employee does not
engage in unfair competition with the Company. If any provision or clause of
this Agreement, or any portion thereof, shall be held by any court or other
tribunal of competent jurisdiction to be illegal, void or unenforceable in such
jurisdiction, the remainder of such provision, clause or any portion thereof and
of the Agreement shall not be affected thereby and shall be given full effect,
without regard to the invalid provision. The parties agree that such court or
tribunal, if possible, shall limit such invalid provision, clause or part
thereof in scope so that it shall not be invalid and shall be enforceable as so
limited. Sections 11, 12, 13, 14, 15, 16, 17 and 18 shall survive the
termination of this Agreement and the termination of the Employee's employment
hereunder.
18. Miscellaneous.
A. Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the matters described herein and is a
complete and exclusive statement as to the terms thereof and supersedes all
previous agreements with respect to such matters.
B. Amendment. This Agreement may not be altered or modified except by a
writing signed by the Company and the Employee. No waiver of compliance with any
provision or condition hereof, and no consent provided for herein shall be
effective unless evidenced by an instrument in writing duly executed by the
party hereto sought to be charged with such waiver or consent.
C. Notice. Any and all notices required or permitted herein shall be
deemed delivered if delivered personally, mailed by registered or certified mail
or sent via overnight courier to the Company at its principal place of business
and to the Employee at the address hereinafter set forth following the
Employee's signature, or at such other address or addresses as either party may
hereafter designate in writing to the other.
D. Assignment. This Agreement shall be binding upon and inure to the
benefit of the heirs, executors and administrators of the Employee, and to the
successors and assigns of the Company, including without limitation, to BDS
Business Center, Inc., a Delaware corporation, into which the Company is
expected to be merged in order to change the Company's jurisdiction of
incorporation to Delaware. The Employee may not assign or delegate any of his
rights or obligations hereunder without the prior written consent of the
Company.
E. Governing Law and Choice of Forum. Connecticut law shall govern the
construction and enforceability of this Agreement. Any and all actions
concerning any dispute arising hereunder shall be filed and maintained only in a
state or federal court sitting in the State of Connecticut.
F. Counterparts. This Agreement may be executed in one or more
counterparts and all such counterparts shall constitute one and the same
instrument.
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G. Gender. Unless the context otherwise requires, words in the singular
number include the plural, and in the plural include the singular; and, words of
the masculine gender include the feminine and the neuter, and when the sense so
indicates words of the neuter gender may refer to any gender.
H. Headings. The various headings in this Agreement are inserted for
convenience only and are not part of this Agreement.
I. No Implied Waivers. Failure of either party to insist upon strict
performance of any part of this Agreement shall not be considered a waiver of
such performance and shall not prevent either party from subsequently insisting
upon strict performance.
J ACKNOWLEDGMENT. THE EMPLOYEE ACKNOWLEDGES THAT HE HAS READ AND
UNDERSTANDS THE COMPLETE AGREEMENT. THE EMPLOYEE FURTHER ACKNOWLEDGES THAT THIS
AGREEMENT HAS BEEN PREPARED BY COUNSEL TO THE COMPANY AND THAT THE EMPLOYEE HAS
BEEN ADVISED TO OBTAIN SEPARATE LEGAL COUNSEL TO REPRESENT THE LEGAL INTERESTS
OF THE EMPLOYEE.
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IN WITNESS WHEREOF, the parties have made this Agreement effective on
the day and year first above written.
COMPANY:
BDS BUSINESS CENTER, INC.
By: /s/ Xxxx X. Xxxxxx
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Its: Xxxx X. Xxxxxx
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Chief Executive Officer
EMPLOYEE:
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
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Full Name of Employee
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Xxxxxx Xxxxxxx
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Xxxx, Xxxxx and Zip Code
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EXHIBIT A
JOB DESCRIPTION
CHIEF FINANCIAL OFFICER
The Chief Financial Officer is responsible for the organization's financial
plans and policies, accounting practices, and relationships with lending
institutions and the financial community. Duties include the development of
accounting and statistical procedures for internal control.
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EXHIBIT B
COMPENSATION
Base salary of $250,000 plus discretionary bonuses.
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EXHIBIT C
PRIOR AGREEMENTS
