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EXHIBIT 10.14
XXXXXX EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "AGREEMENT") is made as of June
19, 2000, between PROXICOM, INC., a Delaware corporation (the "COMPANY"), and
Ekkehard Xxxxxxx Xxxxxx (the "EXECUTIVE").
RECITALS
A. The Company wishes Executive to serve as Senior Vice President,
International Operations on and after the effective date hereof on the terms and
conditions hereof.
B. This Agreement replaces and supercedes any prior employment
agreement entered into between Executive, the Company and any Affiliates.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and mutual obligations
of the parties contained herein, and for other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. ENGAGEMENT. The Company hereby engages Executive to serve as
Senior Vice President, International Operations, and Executive agrees to serve
the Company in the capacities, and subject to the terms and conditions, set
forth in this Agreement.
2. SERVICES. While employed by the Company or an Affiliate,
Executive, as Senior Vice President, International Operations, shall have all
the duties and responsibilities customarily rendered by executives of similar
rank at companies of similar size and nature and as may be delegated from time
to time by the Board of Directors (hereinafter, "the Board") in its sole
discretion. Executive will devote his best efforts and substantially all of his
business time and attention (except for vacation periods and periods of illness
or other incapacity) to the business of the Company and its Affiliates.
Notwithstanding the foregoing, and provided that such activities do not
interfere with the fulfillment of Executive's obligations hereunder, Executive
may (A) serve as a director or trustee of any charitable or non-profit entity;
(B) acquire investment interests in one (1) or more entities which are not,
directly or indirectly, in competition with the Company or its Affiliates and
which do not provide supplies to the Company; or (C) own up to one percent (1%)
of the outstanding voting securities of any publicly held company regardless of
whether such publicly held company is in competition with the Company. Unless
the Company and Executive agree to the contrary, Executive's place of employment
shall be at the Company's offices in New York City, New York; provided, however,
that Executive will travel to such other locations of the Company
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and its Affiliates as may be reasonably necessary and/or as required by the
Board in its sole discretion in order to discharge his duties hereunder.
3. COMPENSATION
(a) SALARY BONUS AND BENEFITS. The Company or an Affiliate will
pay Executive a base salary (the "ANNUAL BASE SALARY") as the Board may
designate from time to time, which initial Annual Base Salary shall be at the
rate of three hundred thousand dollars ($300,000) per annum. Executive's Annual
Base Salary may be reviewed by the Board (or its Compensation Committee)
periodically but shall be reviewed at least annually. Executive's first
scheduled performance and compensation review, including a review of option
grants, shall be in July 2000. Executive shall be eligible to receive a bonus of
up to fifty percent (50%) of Executive's Annual Base Salary for each year as
determined by the Board in its sole discretion, based upon the Company's
achievement of budgetary and other objectives set by the Board. In addition,
while employed, Executive will be entitled to such other benefits approved by
the Board and made generally available to the Company's or Affiliate's senior
management (including health, dental, vision, life insurance, three weeks
accrued vacation, sick leave accrual and paid holidays). Executive will also
receive life insurance and disability insurance consistent with that provided by
comparable companies to similarly situated executives.
(b) STOCK OPTIONS. On February 4, 2000, the Executive was
granted an option to purchase five hundred and sixty thousand (560,000)
post-stock split shares of Company common stock at an option exercise price
equal to the fair market value of the shares of stock on the date of grant
pursuant to the terms of the Proxicom Stock Option Plan. These options vest in
accordance with the following schedule: One hundred and forty thousand (140,000)
options will vest on February 4, 2001, and thirty five thousand (35,000) options
will vest at the end of each quarter thereafter until full vesting. On April 17,
2000, Executive received an option to purchase one hundred thousand (100,000)
shares of Company common stock at an option exercise price equal to the fair
market value of the stock on the date of grant pursuant to the terms of the
Proxicom Stock Option Plan. These options vest in accordance with the following
schedule: Fifty thousand (50,000) options on the date of grant, four thousand
one hundred and sixty seven (4,167) options at the end of each quarter beginning
in the second year as measured from the grant date until full vesting. In the
event of a change of control of the Company (defined as the sale of greater than
fifty percent (50%) of the common stock or assets of the Company to a
purchaser), Executive will be credited with an additional twelve (12) months
towards vesting in the stock options (both the five hundred and sixty thousand
(560,000) share grant and the one hundred thousand (100,000) share grant) if,
after the change of control, any of the following occur: (i) Executive's
employment is terminated; (ii) Executive's then-current position, authority,
duties or responsibilities are diminished; (iii) Executive's base salary is
reduced (other than as a general management reduction in salary); or (iv)
Executive is required to move his primary office more than fifty (50) miles from
the metropolitan area in which it was located immediately before the change of
control.
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4. TERMINATION.
(a) EVENTS OF TERMINATION. Executive's employment
with the Company or its Affiliates shall cease upon:
(i) Executive's death.
(ii) Executive's disability, which means his
incapacity due to physical or mental illness such that he is
unable to perform the duties and services required of his
position for a continuous period of ninety (90) days or for a
period of one hundred twenty (120) days out of any twelve (12)
month period.
(iii) Termination by the Company or an
Affiliate by the delivery to Executive of a written notice from
the Board that Executive has been terminated ("NOTICE OF
TERMINATION") with or without Cause. "CAUSE" shall mean:
Executive's (aa) conviction for a felony offense; (bb) chronic
alcoholism or substance abuse; or (cc) neglect of Executive's
duties and responsibilities to the Company after written notice
of such neglect and an opportunity to cure, all as determined in
good faith by the Company.
(iv) Executive's voluntary resignation by the
delivery to the Board of a written notice from Executive that
Executive has resigned with or without a "Constructive
Discharge." In order to constitute a Constructive Discharge,
Executive must resign within three (3) months of an event that
constitutes a Constructive Discharge. "Constructive Discharge"
shall mean (aa) any action by the Company that results in a
diminution in Executive's position, authority, duties or
responsibilities; or (bb) a reduction in Executive's base salary
(except as part of a general company or management reduction in
salaries).
(b) RIGHTS ON TERMINATION.
(i) In the event that Executive is
terminated or removed from the position of Senior Vice
President, International Operations by the Company or an
Affiliate without Cause or in the event that a termination of
employment occurs by Executive due to a Constructive Discharge,
the Company or an Affiliate will continue to pay Executive an
amount equal to Executive's Annual Base Salary for a one year
period commencing on the date of termination of employment (the
"SEVERANCE PERIOD") on regular salary payment dates (the
"SEVERANCE PAYMENTS"). Executive will continue to be provided
health benefits for the Severance Period. To the extent that
Executive is not allowed to participate in the Company's or an
Affiliate's health benefit programs following his termination of
employment, the Company or an Affiliate will pay his COBRA
premiums for the Severance Period.
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(ii) If the Company or an Affiliate
terminates Executive's employment for Cause, if Executive dies
or is disabled, or if Executive resigns other than due to a
Constructive Discharge, the Company's or an Affiliate's
obligations to pay any compensation or benefits under this
Agreement will cease effective the date of termination.
Executive's right to receive any other benefits will be
determined under the provisions of applicable plans, programs or
other coverages.
(iii) During (aa) the period in which
Executive is receiving Severance Payments from the Company or
any Affiliate and (bb) thereafter, Executive shall not make
disparaging statements, whether oral or written, regarding the
Company or any Affiliate. Executive acknowledges that (cc) the
restriction contained in this Section 4(b)(iii) of this
Agreement is reasonable and necessary to protect the business
and interests of the Company, (dd) the Company is relying upon
the enforceability of such restriction in entering into this
Agreement, (ee) any violation of this restriction will cause
substantial irreparable injury to the Company, (ff) the full
extent of Company's damages will be impossible to ascertain and
(gg) monetary damages will not be an adequate remedy for
Company. Therefore, Executive agrees that a violation of this
Section 4(b)(iii) will result in a forfeiture of the Severance
Payments and benefits provided to Executive in this Section 4(b)
and that the Company is entitled, in addition to other remedies,
to preliminary and permanent injunctive relief to secure
specific performance, and to prevent a breach or contemplated
breach, of this Section 4(b)(iii), to the fullest extent
permissible under state law. The restriction set forth herein
shall be construed as an independent covenant, and the existence
of any claim or cause of action against the Company, whether
predicated upon this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of the
restriction contained in this Section 4(b)(iii). Executive
hereby consents to the jurisdiction over his person by any
courts within the Commonwealth of Virginia with respect to any
proceedings in equity arising out of this Agreement. If any
court of competent jurisdiction shall hold that the restriction
contained in this Section 4(b)(iii) is unreasonable as to time
or scope, said restriction shall be deemed to be reduced to the
extent necessary in the opinion of such court to make it
reasonable.
5. AT WILL EMPLOYMENT. Except as set forth in this
Agreement, the terms and conditions of employment with the Company or an
Affiliate do not constitute an employment contract or guarantee of continued
employment, and either Executive, the Company or an Affiliate has the right to
end the employment relationship at will.
6. CONFIDENTIALITY AND NONSOLICITATION. Executive agrees
that he is subject to the Company's or its Affiliates' standard agreement
governing confidentiality and nonsolicitation and that he will execute such
agreement.
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7. LEGAL FEES. The Company shall reimburse the Executive
for the Executive's reasonable legal fees in the case of any litigation
initiated by Boston Consulting Group against the Executive for a violation of
the non-compete clause contained in his employment contract with Boston
Consulting Group.
GENERAL PROVISIONS
8. DEFINITIONS.
"AFFILIATE" of any particular person or entity means any
other person or entity controlling, controlled by or under common control with
such particular person or entity.
"BOARD" means the Board of Directors of the Company.
"PERSON" means an individual, a partnership, a limited
liability company, a corporation, an association, a joint stock company, a
trust, a joint venture, an unincorporated organization and a governmental entity
or any department, agency or political subdivision thereof.
9. NOTICES. Any notice provided for in this Agreement must
be in writing and must be either personally delivered or sent by reputable
overnight courier service (charges prepaid) to the recipient at the address
below indicated:
If to the Company or an Affiliate:
Proxicom, Inc.
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Tel No.: (000) 000-0000
Fax No.: (000) 000-0000
with a copy to:
Xxxxx & Xxxxxxx L.L.P.
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx Xxxxx, Esq.
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
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If to Executive:
E. Xxxxxxx Xxxxxx
000 Xxxx Xxxxxx
Xxx. 0X
Xxx Xxxx, X.X. 00000
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 will be deemed to have been given when so delivered
or sent or, if mailed, five (5) days after deposit in the U.S. mail.
10. GENERAL PROVISIONS.
(a) SEVERABILITY. Whenever possible, each provision
of this Agreement will 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 will
not affect any other provision or any other jurisdiction, but this Agreement
will be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
(b) 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 pre-empt 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.
(c) COUNTERPARTS. This Agreement may be executed in
separate counterparts, each of which is deemed to be an original and all of
which taken together constitute one and the same agreement.
(d) SUCCESSORS AND ASSIGNS. Except as otherwise
provided herein, this Agreement shall bind and inure to the benefit of and be
enforceable by Executive, the Company, its Affiliates and their respective
successors and assigns; provided that the rights and obligations of Executive
under this Agreement shall not be assignable and, provided further that, the
rights and obligations of the Company may be assigned to any Affiliate of the
Company.
(e) CHOICE OF LAW. This Agreement, the rights and
obligations of the parties hereto, and any claims or disputes relating thereto,
shall be governed by and construed in accordance with the laws of the
Commonwealth of Virginia (but not including the choice of law rules thereof).
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(f) AMENDMENT AND WAIVER. The provisions of this Agreement may be
amended and or waived only with the prior written consent of the Company or its
Affiliate and Executive.
(g) BUSINESS DAYS. If any time period for giving notice or taking
action hereunder expires on a day which is a Saturday, Sunday or holiday in the
state in which the Company's chief executive office is located, the time period
shall be automatically extended to the business day immediately following, such
Saturday, Sunday or holiday.
(h) NO WAIVER. A waiver by any party hereto of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy that such party would otherwise have on any future occasion. No failure
to exercise or any delay in exercising on the part of any party hereto, any
right, power or privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided are cumulative and may be exercised singly or
concurrently, and are not exclusive of any rights or remedies provided by law.
(i) INSURANCE. The Company or an Affiliate, at its discretion, may
apply for and procure in its own name for its own benefit life and/or disability
insurance on Executive in any amount or amounts considered available. Executive
agrees to cooperate in any medical or other examination, supply any information,
and to execute and deliver any applications or other instruments in writing as
may be reasonably necessary to obtain and constitute such insurance. Executive
hereby represents that he has no reason to believe that his life is not
insurable at rates now prevailing for healthy men of his age.
(j) WITHHOLDING TAXES. The Company and its Affiliates shall be
entitled to deduct or withhold from any amounts owing from the Company or any of
its Affiliates to Executive any federal, state, provincial, local or foreign
withholding taxes, excise taxes, or employment taxes ("TAXES") imposed with
respect to Executive's compensation or other payments from the Company or any of
its Affiliates or Executive's ownership interest in the Company, including, but
not limited to, wages, bonuses, dividends, the receipt or exercise of stock
options and/or the receipt or vesting of restricted stock.
(k) FURTHER ASSURANCES. Executive shall execute and deliver all
documents, provide all information, and take or refrain from taking such actions
as may be necessary or appropriate to achieve the purposes of this Agreement.
(l) ARBITRATION. Except as provided in Section 4(b)(iii), any
dispute arising out of this Agreement, the Executive's relationship with the
Company or any of its Affiliates, or the Executive's separation from employment
shall be subject to binding arbitration. The arbitration shall be governed by,
and conducted in accordance with, the American Arbitration Association Labor
Arbitration Rules. Within ninety (90) days after the dispute, controversy or
claim arises, the party demanding arbitration shall give the other party written
notice of his/its intention to arbitrate, which notice shall contain a statement
setting forth the
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nature of the dispute and the remedy sought. Immediately following a demand for
arbitration, the parties shall request a list of arbitrators from the American
Arbitration Association. The list shall be limited to arbitrators who are
members of the National Academy of Arbitrators and who are familiar with labor
and employment disputes. Within fourteen (14) days after the mailing date of the
list, the parties shall select one arbitrator from the list. The arbitration
shall be confidential. The arbitration hearing shall be held in the Commonwealth
of Virginia, and shall be private and not open to the public. The parties shall
share the arbitrator's fees and expenses equally during the arbitration. In the
arbitrator's final award, the arbitrator may award, in the arbitrator's
discretion, the party substantially prevailing all costs incurred by that party
in connection with the arbitration, including reasonable attorneys' fees and
that party's share, if any, of the fees charged by the arbitrator, and all
filing and/or arbitration administration fees incurred by that party in
connection with the arbitration.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
PROXICOM, INC.
By: XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
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Title: Exec. Vice President & CFO
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EXECUTIVE
EKKEHARD XXXXXXX XXXXXX
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EKKEHARD XXXXXXX XXXXXX
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