EXHIBIT 10(d)
Xxxxxx Xxxxxx
Employment Agreement
THIS EMPLOYMENT AGREEMENT ("Agreement") is made this1st day of June, 2001
between Netplex Systems, Inc. a corporation ("Employer"), and Xxxxxx Xxxxxx
("Employee").
NOW, THEREFORE, in consideration of the mutual covenants and obligations
hereinafter set forth, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
1) Employment and Duties. Employee shall serve as Employer's President of the
Netplex Systems business. Employee shall perform all of the duties
associated with his position and such other duties as may be assigned by his
supervisors. He shall be responsible for the overall direction and
profitability of the Netplex Systems business subject to the supervision of
the Chief Executive Officer and Board or Directors of Netplex Group, Inc.,
or such other supervisor as Employer may from time-to-time designate.
Employer may, from time to time, extend or curtail Employee's duties in its
discretion. If Employee is elected or appointed as a director or an officer
of Employer, Employee shall serve in such capacity or capacities without
further compensation. Nothing herein shall be construed, however, to require
Employee's election or appointment as a director or an officer. Furthermore,
in the event Employee's employment terminates for any reason, he shall and
hereby does resign all officer or director positions he may hold effective
as of the date of such termination.
2) Compensation. During the term of this Agreement, Employer shall pay
Employee a salary and bonus as follows:
a) Salary. Employee's annual salary rate shall be $150,000
b) Bonus. Employee shall be a participant in the Employer's bonus plan
for the President of Netplex Systems business as established and
maintained by Employer subject to all terms and conditions of that bonus
program, as it may be modified or terminated in Employer's sole
discretion.
c) Other Benefits. Employee shall be eligible to participate in all
employee benefit plans and programs offered from time to time to all
full-time employees of Employer, in accordance with and to the extent
permitted by the terms of those plans and programs, as the same may be
modified or terminated in Employer's discretion from time-to-time.
d) Sale of Netplex Systems. Employee's base salary shall be $250,000 upon
the event of a sale of Netplex Systems Inc. to a non-financial acquirer
(i.e. a sale or merger with a similar company).
3) Extent of Services. Employee shall devote his full working time and his
entire attention and energy and best efforts to the business and affairs of
Employer and shall not be engaged in any other business activity, whether or
not such business activity is pursued for gain, profit or other pecuniary
advantage, unless Employer consents to Employee's involvement in such
business activity in writing. This restriction shall not be construed as
preventing Employee from owning up to 5% of the stock in any publicly traded
corporation that does not compete with Employer or any of its parents,
subsidiaries or affiliated entities (collectively "affiliates".)
4) Term. This Agreement shall remain in effect from its effective date until
it is terminated. Either party may terminate this Agreement as follows:
a) Employee Resignation. Employee may resign from employment at any time
by giving thirty days advance written notice to Employer.
b) Termination without cause. Employer may, without cause, terminate this
Agreement at any time by giving 30 days' advance written notice to
Employee or continuation of salary in lieu of such notice. In that
event, Employee, if requested by Employer, shall continue to render his
services, and shall be paid his regular compensation up to the date of
termination. In addition, Employee shall be paid on the date of
termination benefit equal to one year's salary at the highest salary
rate in effect during the term of this Agreement , payable in
installments in accordance with Employer's payroll practices (less all
amounts required to be withheld and deducted).
c) Termination for cause. Employer may terminate this Agreement at any
time with or without notice for cause. Upon such termination for cause
no additional compensation under any provision of this Agreement shall
be due. For the purposes of this Agreement, the term "cause" shall mean:
i) Employee's conviction (including a plea of nolo contendre) for any
felony or any crime of moral turpitude.
ii) Employee's violation of Employer's drug and alcohol policy as
determined by Employer.
iii) Employee's violation of Employer's policy against sexual
harassment or discrimination as determined by Employer.
iv) Employer's determination that Employee has falsified any
documents or information or that Employee has misappropriated
any property or funds of Employer.
v) Employee's material breach of any term of this Agreement.
vi) Any other act or omission by Employee which constitutes a breach
of his duty of loyalty or which materially damages or interferes
with Employer's operations.
d) Termination Upon a Change in Control. If there is a "change in
control" of Employer and Employee is terminated other than for cause
within 12 months after such change in control, Employee will receive a
lump sum cash payment equal to the sum of all salary and bonus at target
level that would have been paid for the then remaining duration of this
Agreement, but in no case less than one year of salary and bonus at
target performance. Employee may elect to continue to be covered under
all of Employer's health and major medical plans then in effect for a
period of 18 months pursuant to the federal COBRA law. Employer shall
pay Employer's costs to continue such coverage until the earlier of 18
months or the date Employee becomes eligible for coverage under another
employer's health plan.
For purposes of this Agreement, the term "change in control" is defined
to include (a) a tender offer or exchange offer made and consummated for
ownership of Employer stock representing 50% or more of the combined
voting power of Employer's outstanding securities; (b) the sale or
transfer of substantially all of Employer's assets to another
corporation which is not a wholly-owned subsidiary of the Employer; (c)
any transaction relating to Employer which must be described in
accordance with item 5(f) of Schedule 14A of Regulation 14A of the
Securities and Exchange Commission; (d) any merger or consolidation of
Employer with another corporation, where less than 50% of the
outstanding voting shares of the surviving or resulting corporation are
owned in the aggregate by Employer's former stockholders; (e) any tender
offer, exchange offer, merger, sale of assets and/or contested election
which results in a total change in the composition of Employer's board
of directors; or (f) the sale or transfer of Employer's assets to
another corporation which is not a wholly-owned subsidiary of Employer.
The amounts paid to Executive pursuant to this subparagraph will be
deemed severance pay in consideration of Employee's past services to the
Employer and his continued services from the date of this Agreement.
Employee will have no duty to mitigate his damages by seeking other
employment, nor will Employee's severance pay hereunder be reduced or
offset by any future earnings.
e) Illness or Disability. To the extent permitted by applicable law, if
Employee is absent from his employment by reason of illness or other
incapacity for more than 12 consecutive weeks, Employer may, after such
12 consecutive weeks but only if Employee then is unable to return to
active employment with Employer because he is unable to perform all of
the essential functions of his job with or without reasonable
accommodation, terminate Employee's employment by furnishing him with
written notice of termination. Employer shall pay Employee compensation
during any period of illness or incapacity in accordance with and to the
extent required by Employer's sick pay policy then in effect.
f) Death. Employee's employment shall terminate by reason of his death.
g) Consequences of Termination. Except as expressly provided otherwise
herein, in the event of any termination under this paragraph, Employer
shall pay Employee or in the event of his death, Employee's estate, for
all accrued but unpaid salary and vacation, as of the termination date,
and will not be required to pay Employee any severance benefits.
Furthermore, except as required by law or plan documents, Employee's
entitlement to, accrual of and participation in all Employer benefit
plans and programs shall cease as of the terminated date. The provisions
of Section 5, 6, 7 and 8 shall survive the termination of this
Agreement.
5) Restrictive Covenants. During the term of this Agreement and for a period
of one (1) year thereafter, Employee shall not, either as an individual on
his own account or for any other person or entity as a partner, joint
venturer, consultant, employee, agent, officer, director or shareholder,
directly or indirectly:
a) Enter into or engage in any business competitive with that of Employer
within fifty (50) miles of any city of the United States in which
Employer is then doing business, providing Employee has had access to
any of Employer's trade secrets or Confidential Information (as defined
in section 7 below)
b) Solicit or attempt to solicit any of Employer's then current or former
customers with the intent or purpose to perform services for such
customers which are the same or similar to those provided to such
customers by Employer or to sell to such customers goods which are the
same or similar to those provided to the customers by Employer; or
c) Solicit or attempt to solicit any person who then is or was in the
preceding six (6) months an employee or consultant of Employer to leave
the services of Employer, or hire or contract with any such person.
Employee acknowledges and agrees that the restrictions in this paragraph 6
are fair and reasonable to protect the legitimate business interests of
Employer. In the event Employee breaches any provision of this paragraph 6,
Employee agrees that Employer will suffer irreparable injury and damages
will be difficult to ascertain. Thus, Employer shall be entitled to
injunctive relief in addition to all other relief that a court may award.
7) Confidential Information. Employee acknowledges and agrees that all
Confidential Information acquired by Employee in the course of his
employment under this Agreement is valuable proprietary information of
Employer. Employee agrees that Employee will not, during Employee's
period of employment with Employer and thereafter, except as required by
law or as duly authorized in the performance of Employee's duties for
the benefit of Employer, directly or indirectly use, disclose, provide,
or otherwise make available, in whole or in part, any Confidential
Information.
Employee further agrees to take all appropriate action requested by
Employer, whether by instruction, agreement, or otherwise, to ensure the
protection, confidentiality and security of the Confidential Information
and to satisfy Employee's obligations under this Agreement.
All documents, materials, hardware, software, systems and other tangible
things which contain any Confidential Information in any medium shall be the
sole and exclusive property of Employer and/or where applicable, its
customers, clients, brokers, and/or strategic partners. Employee agrees that
upon termination of employment, Employee will return all property of
Employer and all copies, excerpts or summaries thereof in his possession,
custody or control.
For purposes of this Agreement, the term "Confidential Information" shall
include all information not readily available in the public domain (but
including information in the public domain due to a violation of an
obligation not to disclose it) and shall include all of the following,
whether in oral, written, electronic, graphical or visual form which is
either provided or delivered directly or indirectly to Employee, visually
perceived by Employee, and/or learned by Employee during the course of
Employee's employment by Employer.
a) Employer's and its customers', brokers', clients' and strategic
partners' operations, methods of doing business, research and
development, know-how, staff lists, prospective staff lists, customer,
client and broker lists, prospective customer, client and broker lists,
manufacturing methods and procedures, private processes, computer
programs, algorithms, finances, services and methods and procedures
whereby such services are provided, formulae, compositions, machines,
equipment, apparatus, operations, potential acquisitions, prospective
and executed agreements, and
b) Employer's and its customers' brokers', clients' and strategic partners'
source and object code, computer programs and associated documentation,
manuals, presentation material, marketing strategies, usage
methodologies, and other printed graphical or visual perceptible
materials describing the use or design of software and/or strategic
plans; and
c) All documentation, manuals, presentation material, usage methodologies,
and all other oral, written, electronic, printed, graphical or visually
perceptible information or materials pertaining to or describing the use
and/or design of Employer's internet web sites, as well as the source
and object code comprising same; and
d) All information or data, whether in oral, written, graphical or visual
form, and whether stored on media or electronically transmitted which
relates to past, present, or future products, techniques, designs or
other technical data, trade secrets, information designated by patent
and/or copyright or trademark or servicemark, customer lists or other
compilations for marketing or development, or regarding administrative
management, financial, marketing or manufacturing activities of Employer,
its customers, brokers, clients and strategic partners.
8) Inventions. Employee shall, without royalty or additional consideration,
disclose promptly in writing and assign immediately, and hereby assigns to
Employer, all of Employee's right, title and interest in and to, any
inventions, improvements, original works of authorship, formulas, processes,
programs, techniques, know-how, data, developments or discoveries, whether
or not patentable or copyrightable, (hereinafter referred to collectively as
"Work Product") which Employee may make or conceive, or first reduce to
practice or learn either solely or jointly with others, during the term of
the Agreement through Employee's performance of services for Employer.
Employee shall, upon request from Employer, execute, acknowledge and deliver
to Employer all necessary documents, and shall take such other action as may
be necessary to assist Employer in obtaining by statute or treaty in any and
all countries, Letters Patent, copyrights, trademarks or other statutory or
common law protections for Work Product covered by this Paragraph 8, vesting
title and right in such patents, copyrights, trademarks and other
protections in Employer and its designees in any and all countries. Employee
shall further assist Employer in every proper way to enforce such patents,
copyrights, trademarks and other protections as Employer may desire and
hereby gives Employer the power of attorney to execute all documents and
take all such actions Employer deems necessary to effectuate this Paragraph
8. Employee's obligation to deliver documents and assist Employer under this
Paragraph 8 apply both during and subsequent to the term of this Agreement.
Employee represents and warrants that all Work Product created, developed or
reduced to practice or otherwise produced pursuant to this Agreement shall
be accurate and shall be fully usable for the purpose for which it is
designed. Employee warrants that any use by Employer of such Work Product
shall not infringe the rights of any third parties. Employee further grants
to Employer without further royalty or consideration, a license to, in
Employer's sole discretion and in any medium use and publish any Work
Product.
9) Expenses. Employee is authorized to incur only such authorized expenses
for promoting Employer's business as Employer may, from time to time, deem
reasonable and necessary. Employer will reimburse Employee for all such
expenses upon Employee's presentation of receipts and an itemized
accounting therefor in accordance with Employer's policy, as it may be
amended from time to time in Employer's discretion.
10) Notice. All notices required to be given hereunder shall be in writing and
shall be deemed to have been duly given on the date received, if delivered
personally or by overnight mail, or on the third day after mailing, if sent
by registered or certified mail, return receipt requested, postage prepaid,
and addressed to the party at the address set forth below or to such other
address as either party hereto may subsequently designate in writing to the
other party a similar manner.
11) Arbitration. All disputes, controversies, or differences arising in
connection with the validity, execution, performance, breach, or
termination of this Agreement (except those arising under paragraphs 6, 7
or 8) shall be finally settled in an arbitration proceeding under the
Commercial Rules of the American Arbitration Association then in effect by
three arbitrators with expertise in employment and labor law in the
computer consulting/information technology industry. Selection of the
arbitrators shall be as follows: each party shall appoint one arbitrator
within twenty (20) days after the parties have agreed to go to arbitration,
and those two arbitrators shall appoint a third arbitrator who shall act as
chairman, within a twenty (20) day period thereafter. If the parties fail
to appoint the chairman within said period, the parties will apply to the
American Arbitration Association for appointment of the third arbitrator.
The parties agree to be bound by the findings of the arbitration.
Notwithstanding the foregoing, the courts shall have jurisdiction over
injunctive or provisional relief pending arbitration. The non-prevailing
party to the arbitration shall pay all the prevailing party's expenses of
the arbitration, including reasonable attorneys' fees and other costs and
expenses incurred in connection with the prosecution or defense of such
arbitration.
12) Construction of Agreement. This Agreement shall be interpreted, construed
and governed by and under the laws of the Commonwealth of Virginia, without
reference to the principles of conflicts of law therein and Employee
unconditionally submits to the jurisdiction of the courts located in the
State of Virginia in all matters relating to or arising from this
Agreement.
a) If any provision or clause of this Agreement or the application
thereof to either party is held to be invalid by a court or arbitrator
of competent jurisdiction, then such provisions shall be severed
herefrom, and such invalidity shall not affect any other provision of
this Agreement, the balance of which shall remain in and have its
intended full force and effect.
b) In the event that the provisions of paragraphs 6 or 7 of this Agreement
shall ever be deemed to exceed the time or geographical limits
permitted by applicable law, then such provisions shall be reformed to
the maximum time and geographical limits permitted by applicable law.
c) References herein to "Paragraphs" or "Subparagraphs" means the various
paragraphs and subparagraphs of this Agreement. The headings and titles
of the paragraphs of this Agreement are not a part of this Agreement,
but are for convenience only and are not intended to define, limit or
construe the contents of the various paragraphs. The term "including"
means including, without limitation, unless the context clearly
indicates otherwise.
d) This Agreement contains the entire agreement between the parties hereto
and supersedes all other agreements, discussions or understandings with
respect to the subject matter hereof, and there are no understandings,
representations or warranties of any kind between the parties except as
expressly set forth herein.
e) This Agreement may not be modified except by a writing duly signed by
both parties hereto.
f) Neither this Agreement nor any right or obligation of Employee
hereunder may be assigned by Employee without the prior written consent
of Employer. Subject thereto, this Agreement and the covenants and
conditions herein contained shall inure to the benefit of, and shall be
binding upon, the parties hereto and their respective successors and
permitted assigns.
g) This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original and all of which shall constitute one
and the same instrument.
h) The wavier of either party of a breach or default by the other party of
any provision of this Agreement shall not operate or be construed as a
waiver of any other, continuing or subsequent breach or default by such
party.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties as of
the date first set forth above.
NETPLEX SYSTEMS, INC. XXXXXX XXXXXX
By:______________________________ By:_______________________________
Date:____________________________ Date:_____________________________
