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EXHIBIT 10F
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KEY EMPLOYEE AGREEMENT
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To: Xx. Xxxxxxx Xxxxx As of January 1, 1998
The undersigned, National Datacomputer, Inc., a Delaware corporation,
which together with its wholly-owned subsidiaries, as well as its successors and
assigns (hereinafter collectively referred to as the "Company"), hereby agree
with you as follows:
l. Position and Responsibilities.
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1.1 You shall serve as President and Chief Executive Officer
of the Company and shall perform the duties customarily associated with such
capacity from time to time and at such place or places as the Company shall
designate are appropriate and necessary in connection with such employment;
provided, however, that you shall not be required to relocate your place of
employment beyond a 10 mile radius from Billerica, Massachusetts without your
prior written consent.
1.2 You will, to the best of your ability, devote your full
time and commercially reasonable efforts to the performance of your duties
hereunder and the business affairs of the Company. You agree to perform such
executive duties as may be reasonably assigned to you by or on authority of the
Company's Board of Directors from time to time.
1.3 You will duly and faithfully perform and observe any and
all reasonable rules and regulations which the Company may now or shall
hereafter establish governing the conduct of its business.
1.4 You will report directly to the Company's Board of
Directors.
2. Term of Employment.
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2.1 The initial term of this Agreement shall be for the period
of years set forth on Exhibit A annexed hereto commencing with the date hereof
(the "Commencement Date"). Thereafter, this Agreement shall be automatically
renewed for successive periods of one year, unless the Company shall give you
not less than six (6) months written notice of non-renewal. Your employment with
the Company may be terminated at any time as provided in Section 2.2.
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If the Company gives you notice of non-renewal, the Company shall be obligated
to pay to you as Severance Benefits an amount set forth in Section 7 (prior to a
"Change of Control" as defined herein) or Section 8 (following a "Change of
Control") of Exhibit A hereto, as applicable, plus payment in full of any
amounts otherwise due you, less applicable taxes and other required withholdings
and any amounts you may owe to the Company.
2.2 The Company shall have the right, on written notice to
you, to terminate your employment:
(a) immediately at any time for "Cause" (as defined
herein subject to your right of cure and right to dispute as provided
in Section 2.3 herein) stating in such notice the reasons therefor; or
(b) at any time, upon not less than fourteen (14)
days written notice, without "Cause" provided the Company shall be
obligated to pay to you as Severance Benefits an amount equal to the
sums set forth in Sections 7 or 8 of Exhibit A hereto, as applicable,
or
(c) For purposes of this Section 2.2 only, if at any
time the Company has incurred losses (exclusive of extraordinary items
of income and loss) of $1,000,000.00 or more in any four consecutive
fiscal quarters, the Company may terminate this Agreement and shall be
obligated to pay you (X) 50% of your then current annual Base Salary
payable in full upon the date of termination of employment, plus (Y)
Severance Benefits as described in Subsection 7(b) of Exhibit "A" for a
period of six (6) months. plus (Z) the sums previously due and payable
to you as described in Subsection 2.2(d)
(d) If the Company shall terminate your employment
under this Section 2, then the Company shall pay to you, in addition to
any sums due to you under Section 2.2(b), any sums then due to you
through the effective date of your termination, less (i) applicable
taxes and other required withholdings, and (ii) any amounts you may owe
to the Company, unless there is a written agreement to the contrary.
(e) Payments under Section 2.2 (b) shall not be due
or payable if you are terminated at any time for "Cause" (subject to
the advance payment requirement of Section 2.3) or if you voluntarily
resign from your employment.
2.3 For purposes of Section 2.2 (except as provided in Section
8(c) of Exhibit A), the term "Cause" shall mean (a) conviction of a felony
involving moral turpitude; or (b) willful or prolonged wrongful absence from
work not excused by disability. During the pendency of any such dispute
following your termination pursuant to this subsection 2.3, the Company will pay
you your full compensation plus any benefits provided in Exhibit A in effect
just prior to the effective date of termination and until the dispute is
resolved, but in any event,
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such payment shall not continue for more than the greater of the remaining
original term of this Agreement or eighteen (18) months and, if a court
determines that your employment was terminated without cause, such payments
shall be credited to any severance payments due you under Exhibit A. All such
payments shall be made on a bi-weekly basis in coordination with Company payroll
policies and the Company agrees to take all such further actions necessary to
insure the continued payment of such amounts during the pendency of any such
dispute, including, but not limited to, the issuance of an injunction by a court
of competent jurisdiction requiring such continued payment. However, if such
court issues a final and non-appealable order that the Company had Cause to
terminate you then you must return all compensation and the value of all
benefits paid and/or provided to you after the effective date of termination.
2.4 In the event of the Involuntary Termination of your
employment with the Company at any time, the Company hereby irrevocably agrees
to provide you with Severance Benefits as defined in Section 7 of Exhibit A
hereto or payments in the event of a "Change in Control" as defined in Section 8
of Exhibit A, as applicable. In this regard, the phrase "Involuntary
Termination" shall mean any termination of your employment by the Company other
than for "cause," as defined in Section 2.3, any notice by the Company not to
renew this Agreement pursuant to Section 2.1, or any termination of your
employment by you due to any of the following circumstances: (a) a reduction in
your Base Salary or Company-paid benefits, (b) a reduction in your eligibility
for any Company bonus or other benefit program, (c) a material or substantial
change in your title, position, authority or duties or moving your office within
the Company's facility, (d) a change of your principal place of employment from
Billerica, Massachusetts to another location beyond 10 miles of Billerica,
Massachusetts, (e) failure to elect you as a Director of the Company, or (f) the
breach of any material provision of this Agreement by the Company which is not
substantially cured within thirty (30) days following written notice to each
member of the Board of Directors.
3. Compensation. You shall receive the compensation and benefits set
forth on Exhibit A hereto ("Compensation") for all services to be rendered by
you hereunder and for your transfer of property rights pursuant to an agreement
relating to proprietary information and inventions of even date herewith
attached hereto as Exhibit C between you and the Company (the "Proprietary
Information and Inventions Agreement").
4. Other Activities During Employment.
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4.1 Except for any outside directorships currently held by you
as listed on Exhibit B hereto, and except with the prior written consent of the
Company's Board of Directors, you will not during the term of this Agreement
undertake or engage in any other employment, occupation, directorship or
business enterprise other than one in which you are an inactive investor or as a
director, which consent shall not be unreasonably withheld or delayed .
4.2 You hereby agree that, except as disclosed on Exhibit B
hereto, during
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your employment hereunder, you will not, directly or indirectly, engage (a)
individually, (b) as an officer, (c) as a director, (d) as an employee, (e) as a
consultant, (f) as an advisor, (g) as an agent (whether a salesperson or
otherwise), (h) as a broker, or (i) as a partner, coventurer, stockholder or
other proprietor owning directly or indirectly more than two percent (2%)
interest in any firm, corporation, partnership, trust, association, or other
organization which is engaged in the development of route accounting systems or
any other line of business engaged in or under demonstrable development by the
Company (such firm, corporation, partnership, trust, association, or other
organization being hereinafter referred to as a "Prohibited Enterprise"). Except
as may be shown on Exhibit B hereto, you hereby represent that you are not
engaged in any of the foregoing capacities (a) through (i) in any Prohibited
Enterprise.
5. Former Employers.
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5.1 You represent and warrant that your employment by the
Company will not conflict with and will not be constrained by any prior or
current employment, consulting agreement or relationship, whether oral or
written. You represent and warrant that you do not possess confidential
information arising out of any such employment, consulting agreement or
relationship which, in your best judgment, would be utilized in connection with
your employment by the Company in the absence of Section 5.2.
5.2 If, in spite of the second sentence of Section 5.1, you
should find that confidential information belonging to any other person or
entity might be usable in connection with the Company's business, you will not
intentionally disclose to the Company or use on behalf of the Company any
confidential information belonging to any of your former employers; but during
your employment by the Company you will use in the performance of your duties
all information which is generally known and used by persons with training and
experience comparable to your own all information which is common knowledge in
the industry or otherwise legally in the public domain.
6. Proprietary Information and Inventions. You agree to execute,
deliver and be bound by the provisions of the Proprietary Information and
Inventions Agreement.
7. Post-Employment Activities.
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7.1 So long as the Company is not in breach of its obligations
to you hereunder, for a period of two (2) years after the termination or
expiration, for any reason, of your employment with the Company hereunder,
absent the Company's prior written approval, you will not directly or indirectly
engage in activities similar or reasonably related to those in which you shall
have engaged hereunder during the two years immediately preceding termination or
expiration for, nor render services similar or reasonably related to those which
you shall have rendered hereunder during such two years to, any person or entity
whether now existing or hereafter established which directly competes with (or
proposes or plans to directly compete
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with) the Company ("Direct Competitor") in any line of business engaged in or
under development by the Company. Nor shall you entice, induce or encourage any
of the Company's other employees to engage in any activity which, were it done
by you, would violate any provision of the Proprietary Information and
Inventions Agreement or this Section 7. As used in this Section 7.1, the term
"any line of business engaged in or under development by the Company" shall be
applied as at the date of termination of your employment, or, if later, as at
the date of termination of any post-employment consultation.
7.2 So long as the Company is not in breach of its obligations
to you hereunder, for a period of two (2) years after the termination of your
employment with the Company, the provisions of Section 4.2 shall be applicable
to you and you shall comply therewith. As applied to such two (2) year
post-employment period, the term "any other line of business engaged in or under
development by the Company," as used in Section 4.2, shall be applied as at the
date of termination of your employment with the Company or, if later, as at the
date of termination of any post-employment consultation with the Company.
7.3 No provision of this Agreement shall be construed to
preclude you from performing the same services which the Company hereby retains
you to perform for any person or entity which is not a Direct Competitor of the
Company upon the expiration or termination of your employment so long as you do
not thereby violate any term of the Proprietary Information and Inventions
Agreement.
8. Remedies. Your obligations under the Proprietary Information and
Inventions Agreement and the provisions of Sections 6, 7, 8 and 9 of this
Agreement (as modified by Section 10, if applicable) shall survive the
expiration or termination of your employment (whether through your resignation
or otherwise) with the Company. You acknowledge that a remedy at law for any
breach or threatened breach by you of the provisions of the Proprietary
Information and Inventions Agreement or Section 7 would be inadequate and you
therefore agree that the Company shall be entitled to such injunctive relief in
case of any such breach or threatened breach.
The Company's obligations and those of any successors or assignees of
the Company under this Agreement, including but not limited to the severance
provisions and other compensation and benefits due to you pursuant to Exhibit A
hereto, will be a condition of and are to remain those of any successor or
assignee. The Company acknowledges that a remedy at law for any breach or
threatened breach by the Company, its directors or agents of any of the
provisions of Exhibit A hereto or of this Agreement generally, or of any
extension of this Agreement, would be inadequate and the Company therefore
agrees that you shall be entitled to injunctive relief in case of any such
breach or threatened breach. In the event of any dispute pursuant to this
Agreement, the prevailing party in any litigation or arbitration shall be
entitled to
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prompt reimbursement of reasonable legal fees and related expenses incurred in
connection with such dispute.
9. Assignment. This Agreement and the rights and obligations of the
parties hereto shall bind and inure to the benefit of any successor or
successors of the Company by reorganization, merger or consolidation and any
assignee of all or substantially all of its business and properties, but, except
as to any such successor or assignee of the Company, neither this Agreement nor
any rights or benefits hereunder may be assigned by the Company or by you,
except by operation of law.
10. Interpretation. IT IS THE INTENT OF THE PARTIES THAT in case any
one or more of the provisions contained in this Agreement shall, for any reason,
be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect the other provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. MOREOVER, IT IS THE
INTENT OF THE PARTIES THAT in case any one or more of the provisions contained
in this Agreement shall for any reason be held to be excessively broad as to
duration, geographical scope, activity or subject, such provision shall be
construed by limiting and reducing it as determined by a court of competent
jurisdiction, so as to be enforceable to the extent compatible with applicable
law.
11. Notices. Any notice which the Company is required to or may desire
to give you shall be given by personal delivery or registered or certified mail,
return receipt requested, addressed to you at your address of record with the
Company, or at such other place as you may from time to time designate in
writing. Any notice which you are required or may desire to give to the Company
hereunder shall be given by personal delivery or by registered or certified
mail, return receipt requested, addressed to each member of the Board of
Directors and the Company at its principal office, or at such other office as
the Company may from time to time designate in writing. The date of personal
delivery or the date of mailing any notice under this Section 11 shall be deemed
to be the date of delivery thereof.
12. Waivers. If either party should waive any breach of any provision
of this Agreement, such party shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this
Agreement.
13. Complete Agreement; Amendments. The foregoing including Exhibits A,
B, C and D hereto, is the entire agreement of the parties with respect to the
subject matter hereof, superseding any previous oral or written communications,
representations, understandings, or agreements with the Company or any officer
or representative thereof. Any amendment to this Agreement or waiver by the
Company of any right hereunder shall be effective only if evidenced by a written
instrument executed by the parties hereto, upon authorization of the Company's
Board of Directors.
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14. Headings. The headings of the Sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning of this Agreement.
15. Counterparts. This Agreement may be signed in two counterparts,
each of which shall be deemed an original and both of which shall together
constitute one agreement.
16. Governing Law. This Agreement shall be governed by and construed
under Massachusetts law.
The exclusive venue for any dispute hereunder shall be the Superior
Court of the Trial Court of the Commonwealth of Massachusetts in Middlesex
County.
If you are in agreement with the foregoing, please sign your name below
and also at the bottom of the Proprietary Information and Inventions Agreement,
whereupon this Agreement shall become binding in accordance with its terms.
Please then return this Agreement to the Company. (You may retain for your
records the accompanying counterpart of this Agreement enclosed herewith).
Very truly yours,
NATIONAL DATACOMPUTER. INC.
By:
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, duly authorized
Accepted and Agreed:
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Xx. Xxxxxxx Xxxxx
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EXHIBIT A
EMPLOYMENT TERM, COMPENSATION AND BENEFITS OF
XX. XXXXXXX XXXXX
l. Term. The term of the Agreement to which this Exhibit A is annexed and
incorporated shall be for a period from the date of this Agreement (the
"Commencement Date") through December 31, 2000.
2. Compensation.
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(a) Base Salary. For the period from January 1, 1998 through
March 31, 1998, your Base Salary shall be $126,000 per annum, payable
on a bi-weekly basis. Thereafter, your Base Salary shall be $150,000.00
per annum through December 31, 1998, payable in equal bi-weekly
payments. For future years, any increases in Base Salary shall be as
established by the Board of Directors. The Base Salary may not be
decreased during your employment without your approval.
(b) Stock Option Grant. You shall be entitled to receive stock
option grants, in the form of the grant letter attached hereto as
Exhibit D.
(c) Incentive Payments. You shall be entitled to bonus
arrangements as determined by the Board of Directors from time to time.
3. Vacation. You shall be entitled to all legal and religious holidays,
and three weeks paid vacation per annum. Up to 50% of any unused
vacation may be accrued (but in any event not to exceed three weeks
paid vacation)or cashed in based on your then current Base Salary.
4. Insurance and Benefits. You shall be eligible to participate in any
health, dental, disability, accident and disability insurance or other
group benefit plan, as well as any other plan, program or policy of the
Company intended to benefit employees and, in particular, plans
designed to benefit principal Company executives (including but not
limited to stock incentive plans (other than stock option plans), stock
awards, etc.) which may be established by the Company or which the
Company is required to maintain by law.
5. Retirement Plan. You will be eligible to participate in the Company's
401(k) plan. If the Company elects to make contributions to the
Company's 401(k) plan or any Company retirement plans, you will
participate in such contributions in accordance with all laws and
regulations.
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6. Expense Reimbursement. You shall be entitled to reimbursement of all
proper business expenses in accordance with the Company's expense
reimbursement policies.
7. Severance Benefits.
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(a) When provided for in this Agreement, you shall be entitled
to "Severance Benefits". When used in this Agreement, the term
Severance Benefits shall be determined based upon an amount equal to
(X) (i) 1/12th of 100% of your then current annual Base Salary, plus
(ii) 1/12th of 100% of your Incentive Compensation earned for the
Company's most recent fiscal year, multiplied by (Y) the greater of the
remaining calendar months under the original term of this Agreement or
eighteen (18) months (the "Severance Period"). This total amount shall
be paid to you as follows: 33 1/3% of such Severance Benefits shall be
paid to you within fourteen (14) days after your effective date of
termination and the remaining 66 2/3% shall be paid to you in twelve
(12) equal monthly installments commencing within forty (40) days after
the date of your termination of active employment with the Company.
(b) In addition, the term "Severance Benefits" shall include
the continuation for you and your family, during the Severance Period,
of all of the other benefits which are provided or available to you on
the last day of your actual service with the Company, including your
continued accrual and the vesting under the terms of any pension or
401(k) plan then sponsored by the Company to the maximum extent
permitted by law.
(c) The payments referred to above will be in addition to, and
not in substitution for, any accrued and unpaid salary, vacation,
pension, retirement or other benefits, unreimbursed expenses or other
payments to which you may be otherwise entitled.
(d) In the event of your permanent disability while you are
employed by the Company, your then current Base Salary shall continue
to be paid to your legal representative for the Severance Period to the
extent of available disability insurance and the Company shall use its
commercially reasonable best efforts to obtain coverage on your behalf
providing the same net after-tax benefit; and for a period of three (3)
years following your disability, the Company shall continue to provide
to you the health insurance coverage described above. If you die while
you are employed by the Company, all cash amounts which would have been
payable to you under this Exhibit A, unless otherwise provided for
herein, shall be paid immediately in accordance with the terms of this
Section 7 (to the extent of life insurance proceeds payable to the
Company or to your designee which policy the Company agrees to use its
commercially reasonable best efforts to obtain)to your estate and your
health insurance coverage shall be provided to your spouse for a period
of three (3) years following your death.
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(e) You shall not be required to mitigate the amount of any
payment the Company becomes obligated to make to you in connection with
this Agreement, by seeking other employment or otherwise.
8. Change in Control.
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(a) For purposes of this Agreement, "Change in Control" means
and shall be deemed to occur if any of the following occurs: (i) the
acquisition, after January 1, 1998, by an individual, entity or group
[within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934 as amended (the "Exchange Act")] of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 35% or more of either (A) the outstanding shares of
common stock, no par value pr share, of the Company (the "Common
Stock"), or (B) the combined voting power of the voting securities of
the Company entitled to vote generally in the election of directors
(the "Voting Securities"); or (ii) Individuals who, on January 1, 1998,
constituted the Board of Directors of the Company (the "Incumbent
Board") cease for any reason to constitute at least a majority of the
Board of Directors of the Company; or (iii) Approval by the Board of
Directors or the shareholders of the Company of a (A) tender offer to
acquire any of the Common Stock or voting securities, (B)
reorganization, (C) merger or (D) consolidation, other than a
reorganization, merger or consolidation with respect to which all or
substantially all of the individuals and entities who were the
beneficial owners, immediately prior to such reorganization, merger or
consolidation, of the Common Stock and voting securities beneficially
own, directly or indirectly, immediately after such reorganization,
merger or consolidation, more than 80% of the then outstanding common
stock and voting securities (entitled to vote generally in the election
of directors) of the Company resulting from such reorganization, merger
or consolidation in substantially the same proportions as their
respective ownership, immediately prior to such reorganization, merger
or consolidation, of the Common Stock and the voting securities; or
(iv) Approval by the Board of Directors or the shareholders of the
Company of (A) a complete or substantial liquidation or dissolution of
the Company, or (B) the sale or other disposition (including by
license) of all or substantially all of the assets of the Company,
excluding a reorganization of the Corporation under the corporate laws
of a state or province other than Delaware.
(b) In the event of your actual termination of employment
contemporaneous with or within three years following a Change in
Control, except (x) because of your death or Disability (as hereinafter
defined), (y) by the Company for Cause or (z) by you other than for
Good Reason (as hereinafter defined): (i) you shall be entitled to
receive, in lieu of the sums described in Section 7, a lump sum equal
to 100% of Severance Benefits due determined as if payable under
Section 7 above, to be paid in accordance with the terms of this
Agreement; and (ii) the following additional provisions shall apply
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(which provisions shall supersede any other provisions of the
Agreement, including but not limited to Section 2 of the Agreement, to
the extent such provisions are inconsistent with the following
provisions):
(1) Disability. For purposes of this Section 8(c),
termination by the Company of your employment based on "Disability"
shall mean termination because of your absence from your duties with
the Company on a full time basis for ninety (90) consecutive days as a
result of your incapacity due to physical or mental illness, unless
within thirty (30) days after Notice of Termination (as hereinafter
defined) is given to you following such absence, you shall have
returned to the full time performance of your duties.
(2) Cause. For purposes of this Section 8(c),
termination by the Company of your employment for "Cause" shall mean
termination for Cause as defined in Section 2.3 and 2.2 (c) of this
Agreement.
(3) Good Reason. Termination by you of your
employment for "Good Reason" shall mean termination based on:
(A) a determination by you, in your reasonable
judgment, that there has been a material adverse change in
your status or position(s) as President and Chief Executive
Officer of the Company as in effect immediately prior to the
Change in Control, including, without limitation, a material
adverse change in your status or position as a result of a
diminution in your duties or responsibilities (other than, if
applicable, any such change directly attributable to the fact
that the Company is no longer publicly owned) or the
assignment to you of any duties or responsibilities which are
inconsistent with such status or position(s), or any removal
of you from, or any failure to reappoint or reelect you to,
such position(s) (except in connection with the termination of
your employment for Cause or Disability or as a result of your
death or by you other than for Good Reason) or the failure of
the Corporation and its officers and significant employees
following a Change in Control to provide a work environment
reasonably appropriate and free from unwarranted or
inappropriate harassment for a member of senior management;
(B) a reduction by the Company in your Base Salary as
in effect immediately prior to the Change in Control;
(C) the failure by the Company to continue in effect
any benefits as described above or other Plan (as hereinafter
defined) in which you are participating at the time of the
Change in Control of the Company (or Plans providing you with
at least substantially similar benefits) other than as a
result of
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the normal expiration of any such Plan in accordance with its
terms as in effect at the time of the Change in Control, or
the taking of any action, or the failure to act, by the
Company which would adversely affect your continued
participation in any of such Plans on at least as favorable a
basis to you as is the case on the date of the Change in
Control or which would materially reduce your benefits in the
future under any of such Plans or deprive you of any material
benefit enjoyed by you at the time of the Change in Control;
(D) the failure by the Company to provide and credit
you with the number of paid vacation days to which you are
then entitled in accordance with this Agreement as in effect
immediately prior to the Change in Control;
(E) the Company's requiring you to be based at any
office that is greater than ten (10) miles from where your
office is located immediately prior to the Change in Control
except for required travel on the Company's business to an
extent substantially consistent with the business travel
obligations which you undertook on behalf of the Company prior
to the Change in Control;
(F) the failure by the Company to obtain from any
Successor (as hereinafter defined) the assent to this
Agreement contemplated by Section 8(c)(7) hereof;
(G) any purported termination by the Company of your
employment which is not effected pursuant to a Notice of
Termination satisfying the requirements of Section (8)(c)(4)
below (and, if applicable, Section 8(c)(2) above); and for
purposes of this Agreement, no such purported termination
shall be effective; or
(H) the failure by the Company to fulfill any
material obligation contained in this Agreement and such
breach continues for a period of thirty (30) days following
written notice to the Board of Directors regarding such
breach.
For purposes of this Agreement, "Plan" shall mean any
compensation plan or any employee benefit plan such as a
thrift, pension, profit sharing, medical, disability,
accident, life insurance plan or a relocation plan or policy
or any other plan, program or policy of the Company intended
to benefit employees and, in particular, such Plans designed
to benefit the President and Chief Executive Officer or
Company executives.
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(4) Notice of Termination. Any purported termination
by the Company or by you following a Change in Control shall be
communicated by at least seven days' written notice to the other party
hereto which indicates the specific termination provision in this
Agreement relied upon (the "Notice of Termination").
(5) Date of Termination. "Date of Termination"
following a Change in Control shall mean (A) if your employment is to
be terminated for Disability, thirty (30) days after Notice of
Termination is given (provided that you shall not have returned to the
performance of your duties on a full-time basis during such thirty (30)
day period), (B) if your employment is to be terminated by the Company
for any reason other than death or Disability or by you pursuant to
Sections 8(c)(3)(F) or 8(c)(7) hereof or for any other Good Reason, the
date specified in the Notice of Termination, or (C) if your employment
is terminated on account of your death, the day after your death. In
the case of termination of your employment by the Company for Cause
pursuant to Subsection 8(c)(2) hereof, if you have not previously
expressly agreed in writing to the termination, then within thirty (30)
days after receipt by you of the Notice of Termination with respect
thereto, you may notify the Company that a dispute exists concerning
the Termination, in which event the Date of Termination shall be the
date set either by mutual written agreement of the parties or by such
court having the matter before it. During the pendency of any such
dispute, the Company will continue to pay you your full compensation
and benefits as provided in Section 4 of this Exhibit A in effect just
prior to the time the Notice of Termination is given and until the
dispute is resolved. However, if such court issues a final and
non-appealable order finding that the Company had Cause to terminate
you, then you must return all compensation paid to you after the Date
of Termination specified in the Notice of Termination previously
received by you.
(6) Compensation Upon Termination or During
Disability; Other Agreements.
(A) During any period following a Change in Control
of the Company that you fail to perform your duties as a
result of incapacity due to physical or mental illness, you
shall continue to receive your Base Salary at the rate then in
effect and any benefits or awards under any Plan shall
continue to accrue during such period, to the extent not
inconsistent with such Plans, until and unless your employment
is terminated pursuant to and in accordance with this Section
8(c). Thereafter, your benefits shall be determined in
accordance with the Plans then in effect.
(B) Subject to Section 8 (c) (5), hereof, if your
employment is terminated for Cause following a Change in
Control of the Company, the Company shall pay to you your Base
Salary through the Date of Termination at the rate in effect
just prior to the time a Notice of Termination is given plus
any
A-6
14
benefits or awards which pursuant to the terms of any Plans
have been earned or become payable, but which have not yet
been paid to you. Thereupon the Company shall have no further
obligations to you under this Agreement.
(7) Successors, Binding Agreement.
-----------------------------
(A) The Company will seek, by written request at
least five (5) business days prior to the time a Person
becomes a Successor (as hereinafter defined), to have such
Person, by agreement in form and substance satisfactory to
you, assent to the fulfillment of the Company's obligations
under this Agreement. Failure of such Person to furnish such
assent by the later of (i) three (3) business days prior to
the time such Person becomes a Successor or (ii) two (2)
business days after such Person receives a written request to
so assent shall constitute Good Reason for termination by you
of your employment if a Change in Control of the Company
occurs or has occurred. For purposes of this Agreement,
"Successor" shall mean any person that succeeds to, or has the
practical ability to control (either immediately or with the
passage of time), the Company's business directly, by merger
or consolidation, or indirectly, by purchase of the Company's
securities eligible to vote for the election of directors, or
otherwise.
(B) This Agreement shall inure to the benefit of and
be enforceable by your personal legal representatives,
executors, administrators, successors, heirs, distributees,
devisees and legatees. If you should die while any amount
would still be payable to you hereunder if you had continued
to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement
to your devisee, legatee or other designee or, if no such
designee exists, to your estate.
(C) For purposes of this Section 8, the "Company"
shall include any subsidiaries of the Company and any
corporation or other entity which is the surviving or
continuing entity in respect of any merger, consolidation or
form of business combination in which the Company ceases to
exist; provided, however, for purposes of determining whether
a Change in Control has occurred herein, the term "Company"
shall refer to National Datacomputer, Inc. or its
Successor(s).
(8) Fees and Expenses; Mitigation.
-----------------------------
(A) The Company shall reimburse you, on a current
basis (bit in any event in no less than 30 days), for all
reasonable legal fees and related expenses incurred by you in
connection with the Agreement following a Change in Control of
the Company, including without limitation, (i) all such fees
and expenses, if any, incurred in contesting or disputing any
termination of your employment or
A-7
15
defending yourself in any claim brought by the Company to the
effect that your position was frivolous or advanced in bad
faith, or (ii) your seeking to obtain or enforce any right or
benefit provided by this Agreement, in each case, regardless
of whether or not your claim is upheld by a court of competent
jurisdiction; provided, however, you shall be required to
repay any such amounts to the Company to the extent that a
court issues a final and non-appealable order setting forth
the determination that the position taken by you was frivolous
or advanced by you in bad faith.
(B) You shall not be required to mitigate the amount
of any payment the Company becomes obligated to make to you in
connection with this Agreement, by seeking other employment or
otherwise.
(C) All payments to be made to you under this
Agreement will be subject to required withholding of federal,
state and local income and employment taxes.
(D) Notwithstanding any other provision of this
Agreement, in the event that any payment of benefit received
or to be received by you as a result of or in connection with
a Change in Control, whether pursuant to the terms of this
Agreement or any other plan, arrangement or agreement with the
Company (all such payment and benefits being hereinafter
called the "Total Payments") would subject you to the excise
tax (the "Excise Tax") imposed under Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code"), then,
to the extent necessary to eliminate any such imposition of
the Excise Tax (after taking into account any reduction in the
Total Payments in accordance with the provisions of any other
plan, arrangement or agreement, if any), (a) any non-cash
severance payments otherwise payable to you shall first be
reduced (if necessary, to zero), and (b) any cash severance
payment otherwise payable to you shall next be reduced. For
purposes of the immediately preceding sentence, (i) no portion
of the Total Payments the receipt or enjoyment of which you
shall have effectively waived in writing shall be taken into
account, (ii) no portion of the Total Payment shall be taken
into account which in the opinion of nationally-recognized tax
counsel or certified public accountants (in each case as
selected by you) does not constitute a "parachute payment"
within the meaning of Section 280G of the Code, including,
without limitation, by reason of Section 280G(b)(2) or
(b)(4)(A) of the Code, (iii) any payments to you shall be
reduced only to the extent necessary so that the Total
Payments [other than those referred to in clauses (i) and
(ii)] in their entirety constitute reasonable compensation for
services actually rendered within the meaning of section
280G(4)(B) of the Code or are otherwise not subject to
disallowance as deductions, in the opinion of the tax counsel
or the
A-8
16
accountants referred to in clause (ii); and (iv) the value of
any non-cash benefit or any deferred payment or benefit
included in the Total Payments shall be determined by such
accountants in accordance with the requirements of Section
280G(d)(3) and (4) of the Code (and such determination shall
be reviewed by such tax counsel).
A-9
17
EXHIBIT B
OUTSIDE EMPLOYMENTS AND DIRECTORSHIPS OF
XX. XXXXXXX XXXXX
None
B-1
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EXHIBIT C
--------------------------------------------------------------------------------
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
--------------------------------------------------------------------------------
To: National Datacomputer, Inc.
000 Xxxxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx
As of January 1, 1998
The undersigned, in consideration of and as a condition of my
employment or continued employment by you and/or by companies which you own,
control, or are affiliated with or their successors in business (collectively,
the "Company"), hereby agrees as follows:
1. Confidentiality. I agree to keep confidential, except as the Company
may otherwise consent in writing, and, except for the Company's benefit, not to
disclose or make any use of at any time either during or subsequent to my
employment, any Inventions (as hereinafter defined), trade secrets, confidential
information, knowledge, data or other information of the Company relating to
products, processes, know-how, designs, formulas, test data, customer lists,
business plans, marketing plans and strategies, pricing strategies, or other
subject matter pertaining to any business of the Company or any of its
affiliates, which I may produce, obtain, or otherwise acquire during the course
of my employment, except as herein provided. I further agree not to deliver,
reproduce or in any way allow any such trade secrets, confidential information,
knowledge, data or other information, or any documentation relating thereto, to
be delivered to or used by any third parties without specific direction or
consent of a duly authorized representative of the Company, except as may be
required by law and with the exception of information rightfully within the
public domain.
2. Conflicting Employment; Return of Confidential Material. In
accordance with the provisions of the Key Employment Agreement between myself
and the Company of same date, I agree that during my employment with the Company
I will not engage in any other employment, occupation, consulting or other
activity relating to the business in which the Company is now or may hereafter
become engaged, or which would otherwise conflict with my obligations to the
Company. In the event my employment with the Company terminates for any reason
whatsoever, I agree to promptly surrender and deliver to the Company all
records, materials, equipment, drawings, documents and data of which I may
obtain or produce during the course of my employment, and I will not take with
me any description containing or pertaining to any
C-1
19
confidential information, knowledge or data of the Company which I may produce
or obtain during the course of my employment.
3. Assignment of Inventions.
------------------------
3.1 I hereby acknowledge and agree that the Company is the
owner of all Inventions. In order to protect the Company's rights to such
Inventions, by executing this Agreement I hereby irrevocably assign to the
Company all my right, title and interest in and to all Inventions to the
Company.
3.2 For purposes of this Agreement, "Inventions" shall mean
all discoveries, processes, designs, technologies, devices, or improvements in
any of the foregoing or other ideas, whether or not patentable and whether or
not reduced to practice, made or conceived by me (whether solely or jointly with
others) during the period of my employment with the Company which relate in any
manner to the actual or demonstrably anticipated business, work, or research and
development of the Company, or result from or are suggested by any task assigned
to me or any work performed by me for or on behalf of the Company.
3.3 Any discovery, process, design, technology, device, or
improvement in any of the foregoing or other ideas, whether or not patentable
and whether or not reduced to practice, made or conceived by me (whether solely
or jointly with others) which I develop entirely on my own time not using any of
the Company's equipment, supplies, facilities, or trade secret information
("Personal Invention") is excluded from this Agreement provided such Personal
Invention (a) does not relate to the actual or demonstrably anticipated
business, research and development of the Company, and (b) does not result,
directly or indirectly, from any work performed by me for the Company.
4. Disclosure of Inventions. I agree that in connection with any
Invention, I will promptly disclose such Invention to the members of the Board
of Directors of the Company in order to permit the Company to enforce its
property rights to such Invention in accordance with this Agreement. My
disclosure shall be received in confidence by the Company.
5. Patents and Copyrights; Execution of Documents.
----------------------------------------------
5.1 Upon request, I agree to assist the Company or its nominee
(at its expense) during and at any time subsequent to my employment in every
reasonable way to obtain for its own benefit patents and copyrights for
Inventions in any and all countries. Such patents and copyrights shall be and
remain the sole and exclusive property of the Company or its nominee. I agree to
perform such lawful acts as the Company deems to be necessary to allow it to
exercise all right, title and interest in and to such patents and copyrights.
C-2
20
5.2 In connection with this Agreement, I agree to execute,
acknowledge and deliver to the Company or its nominee upon request and at its
expense all documents, including assignments of title, patent or copyright
applications, assignments of such applications, assignments of patents or
copyrights upon issuance, as the Company may determine necessary or desirable to
protect the Company's or its nominee's interest in Inventions, and/or to use in
obtaining patents or copyrights in any and all countries and to vest title
thereto in the Company or its nominee to any of the foregoing.
6. Maintenance of Records. I agree to keep and maintain adequate and
current written records of all Inventions made by me (in the form of notes,
sketches, drawings and other records as may be specified by the Company), which
records shall be available to and remain the sole property of the Company at all
times.
7. Prior Inventions. It is understood that all Personal Inventions, if
any, whether patented or unpatented, which I made prior to my employment by the
Company, are excluded from this Agreement. To preclude any possible uncertainty,
I have set forth on Schedule A attached hereto a complete list of all of my
prior Personal Inventions, including numbers of all patents and patent
applications and a brief description of all unpatented Personal Inventions which
are not the property of a previous employer. I represent and covenant that the
list is complete and that, if no items are on the list, I have no such prior
Personal Inventions. I agree to notify the Company in writing before I make any
disclosure or perform any work on behalf of the Company which appears to
threaten or conflict with proprietary rights I claim in any Personal Invention.
In the event of my failure to give such notice, I agree that I will make no
claim against the Company with respect to any such Personal Invention.
8. Other Obligations. I acknowledge that the Company from time to time
may have agreements with other persons or with the U.S. Government or agencies
thereof, which impose obligations or restrictions on the Company regarding
Inventions made during the course of work thereunder or regarding the
confidential nature of such work. I agree to be bound by all such obligations
and restrictions and to take all action necessary to discharge the Company's
obligations.
9. Trade Secrets of Others. I represent that my performance of all the
terms of this Agreement and as an employee of the Company does not and will not
breach any agreement to keep confidential proprietary information, knowledge or
data acquired by me in confidence or in trust prior to my employment with the
Company, and I will not disclose to the Company, or induce the Company to use,
any confidential or proprietary information or material belonging to any
previous employer or others. I agree not to enter into any agreement either
written or oral in conflict herewith.
C-3
21
10. Modification. I agree that any subsequent change or changes in my
employment duties, salary or compensation or, if applicable, in any Employment
Agreement between the Company and me, shall not affect the validity or scope of
this Agreement.
11. Successors and Assigns. This Agreement shall be binding upon my
heirs, executors, administrators or other legal representatives and is for the
benefit of the Company, its successors and assigns.
12. Interpretation. IT IS THE INTENT OF THE PARTIES THAT in case any
one or more of the provisions contained in this Agreement shall, for any reason,
be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect the other provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. MOREOVER, IT IS THE
INTENT OF THE PARTIES THAT in case any one or more of the provisions contained
in this Agreement shall for any reason be held to be excessively broad as to
duration, geographical scope, activity or subject, such provision shall be
construed by limiting and reducing it in accordance with a judgment of a court
of competent jurisdiction, so as to be enforceable to the extent compatible with
applicable law.
13. Waivers. If either party should waive any breach of any provision
of this Agreement, he or it shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this
Agreement.
14. Complete Agreement, Amendments. I acknowledge receipt of this
Agreement, and agree that with respect to the subject matter thereof it is my
entire agreement with the Company, superseding any previous oral or written
communications, representations, understandings, or agreements with the Company
or any officer or representative thereof. Any amendment to this Agreement or
waiver by either party of any right hereunder shall be effective only if
evidenced by a written instrument executed by the parties hereto, and, in the
case of the Company, upon written authorization of the Company's Board of
Directors.
15. Headings and Counterparts; Governing Law. The headings of the
sections hereof are inserted for convenience only and shall not be deemed to
constitute a part hereof nor to affect the meaning thereof. This Agreement may
be signed in two counterparts, each of which shall be deemed an original and
both of which shall together constitute one agreement. This Agreement shall be
governed and construed under Massachusetts law.
C-4
22
16. Employment Status. Nothing in this Agreement shall affect in any
manner whatsoever the right or power of the Company to terminate the employment
of the Employee.
EMPLOYEE
---------------------------------
Xx. Xxxxxxx Xxxxx
Accepted and Agreed:
NATIONAL DATACOMPUTER, INC.
By:
-----------------------------
C-5
23
EXHIBIT D
NATIONAL DATACOMPUTER, INC.
000 XXXXXXXXX XXXXXXXX
XXXXXXXXX, XXXXXXXXXXXXX 00000
As of January 1, 1998
Xx. Xxxxxxx X. Xxxxx
c/o National Datacomputer, Inc.
000 Xxxxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Dear Xxxxxxx:
I am pleased to advise you that National Datacomputer, Inc. (the
"Company") has awarded you a non-qualified stock option to purchase up to two
hundred ninety-four thousand (294,000) shares of the Common Stock, $.08 par
value per share, of the Company, at a price equal to the average closing bid
price of the Company's Common Stock for the five (5) trading days preceding the
date of this letter (the "Option Exercise Price").
The following terms and conditions are applicable with respect to this
option, and your signature below shall constitute your acknowledgment and
acceptance of same:
(a) The price at which this option may be exercised shall be at a
per share price equal to the Option Exercise Price. All un-exercised
options shall expire on December 31, 2007.
(b) This option may be exercised in whole or in part from time to
time, provided, however, that an option may not be exercised as to less
than 100 shares at any one time unless it is being exercised in full and
the balance of the shares subject to option is less than 100.
(c) The shares of Common Stock underlying this option and the
exercise price therefor shall be appropriately adjusted from time to time
for stock splits, reverse splits, stock dividends, and reclassifications
of shares.
X-0
00
(x) Performance Options.
(i) One hundred fifty thousand (150,000) of these
options shall vest upon the earlier of December 31, 2000, or a
sale or "Change in Control" of the Company as set forth in
Section (e) of this Option Grant letter or earlier as follows:
(A) In the event that the Company realizes Net Pre-Tax
Income of $200,000 in any four consecutive fiscal
quarters (the "Initial Vesting Event"), then options to
purchase 50,000 shares of Common Stock shall be fully
vested;
(B) After attainment of the Initial Vesting Event, an
additional 10,000 options shall vest for each $50,000 of
Net Pre-Tax Income in excess of $200,000 earned during
any four consecutive fiscal quarters.
For illustration purposes only, if the Company earns
$250,001 in the four consecutive fiscal quarters ending
December 31, 1998, then options to purchase an
additional 10,000 shares of Company stock would vest (in
excess of the original 50,000 vested options). If,
during the four consecutive fiscal quarters ended March
31, 1999, the Company earned $299,999, no additional
options (in excess of the original 60,000 vested
options) would vest. If, during the four consecutive
fiscal quarters ended June 30, 1999, the Company earned
$351,000, then an additional 20,000 options (in excess
of the original 60,000 vested options) would vest.
(ii) An additional one hundred forty four thousand
(144,000) options shall vest at December 31, 2000 (provided
that you are still employed by the Company at that time) or
shall vest earlier at the rate of twelve thousand (12,000)
options for each fiscal quarter from the period from January
1, 1998 through December 31, 2000 in which the Company
realizes positive Net Pre-Tax Income.
(iii) Net Pre-Tax Income shall mean the pre-tax net
income reported by the Company with the Company's quarterly or
annual filings with the Securities and Exchange Commission,
net of items of extraordinary gain or loss, income taxes and
interest expense, as determined in accordance with generally
accepted accounting principles applied on a consistent basis.
D-2
25
(e) In the event of a sale or acquisition of substantially all of
the stock or assets of the Company or a "Change in Control" as defined in
Section 8 of Exhibit "A" of your Key Employee Agreement of even date with
the Company, all unvested options shall vest in full simultaneously with
such Change in Control. In the event of a sale or acquisition of
substantially all of the stock or assets of the Company by a third party,
you shall have thirty (30) days prior to the effective date of such sale
to exercise all options. Any options not exercised (except in the event of
a merger of the Company with a third party whereby Company employee stock
options are exchanged for options of the third party, in which event such
options need not be exercised) within such timeframe shall expire at the
end of such 30-day period (provided that the sale has occurred).
(f) In the event that the Company is unable to deliver shares upon
demand for exercise by you, then the Company shall pay to you, within five
(5) days after written demand by you, an amount in cash (via check or
wire) equal to (X) the difference between the Option Exercise Price and
the average closing ask price for the Company's Common Stock as reported
on the principal exchange for the Company's Common Stock for the five (5)
trading days preceding such demand, (Y) multiplied by the number of
options which you have sought to exercise.
When you wish to exercise this stock option, please refer to the
provisions of this letter and then correspond in writing with the Secretary of
the Company. Further, please indicate your acknowledgment and acceptance of this
option by signing the enclosed copy of this letter and returning it to the
undersigned.
Very truly yours,
__________________________________________
Xxxxxx X. Xxxxxxx, Chief Financial Officer
ACKNOWLEDGMENT AND CONSENT:
_______________________________
Xxxxxxx X. Xxxxx, Optionee
D-3
