Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made effective as of the 17th day of
January, 1995, by and between Sky Alland Research, Inc., a Maryland corporation
(the "Company"), and Xxxxxxx X. Xxxxxx (the "Employee").
W I T N E S S E T H:
The Company desires to employ the Employee and the Employee is willing to accept
such employment with the Company on the terms and subject to the conditions and
limitations contained i this Agreement. Accordingly, in consideration of the
mutual promises and covenants contained in this Agreement, the parties agree as
follows:
1. EMPLOYMENT. The Company hereby employs the Employee and the Employee
hereby accepts employment with the Company on the terms and conditions
set forth in this Agreement.
2.. DUTIES. The Employee shall perform, under the direction of the Board of
Directors the duties of President and CEO for the Company, which duties
shall include the management and supervision of the Company and duties
as are consistent with this position as may be assigned or delegated
from time to time by the Board of Directors of the Company. The
Employee agrees to be so employed and shall devote his best efforts and
substantially all of his business time to advance the interests of the
Company, subject to reasonable vacations compatible with his position.
The Employee shall perform his duties hereunder in compliance with all
Company policies applicable thereto.
3. EMPLOYMENT TERMS. The term of the Employee's employment hereunder (the
Employment Term") shall commence as of the date hereof and, unless
extended by the terms of this Paragraph 3 or otherwise modified by
separate agreement
1
signed by all parties hereto, or terminated as otherwise provided
herein, shall terminate on December 31, 1995. The term of the
Employee's employment shall be renewed and extended automatically for
additional one-year periods thereafter (each, an "Extended Employment
Term"), until terminated pursuant to Paragraph 6 hereof. Paragraphs 8,
9, and 10 shall continue in force in accordance with provisions
therein and shall survive the expiration of the Employment Term and
each Extended Employment Term.
4. COMPENSATION. During the Employment Term and each Extended Employment
Term under this Agreement, the Employee shall be paid his entire
compensation for services performed under this Agreement as follows:
a. SALARY. The Employee shall receive a salary ("Salary") paid
at a rate of $12,500 per month, which shall be reviewed at
least annually by the Board of Directors and adjusted at
their discretion. In no event shall the Employee's Salary
be less than $150,000 per year. The Salary shall be paid in
such increments as are established by the Company, but in
no event less frequently than once per calendar month.
b. INCENTIVE COMPENSATION. The Employee may be paid an
incentive compensation ("Incentive Compensation") in
addition to his Salary, including cash awards and stock
options, as awarded at the discretion of the Board of
Directors of the Company in recognition of exceptional
performance.
5. OTHER BENEFITS.
a. In addition to the compensation set forth in Paragraph 4, the
Company shall provide for the Employee, during the Employment
Term and each Extended Employment Term, the following benefits:
(i) payment of premiums for a medical insurance plan
covering the Employee, including hospitalization, major
medical, dental and prescriptions, and payment of the
premiums for his dependents for
2
inclusion in such medical insurance plan, in such
amounts which the Company will pay on behalf of its
other management officials, if at all;
(ii) assuming underwriting is obtained, disability insurance
equal to 75% of base wage will be provided;
(iii) the same or similar leave or absence from work on
account of personal illness as is the policy of the
Company to grant to other management officials;
(iv) 4 weeks of vacation per each calendar year. It is the
intention of the parties that the Employee take all
vacation allotted to him within the calendar year for
which the vacation is awarded, consistent with his
duties and the demands on his time made from the
ongoing operation of the Company's business. Should the
Employee not take all of the allotted days of vacation
in a given calendar year which he is entitled to take,
he will lose that vacation time and will not be
entitled either to carry over the unused vacation to
succeeding years or to receive payment in respect of
such unused vacation; and
(v) a term life insurance policy in the face amount of
$500,000. which shall name such other persons as
beneficiaries of all of the proceeds of the policy as
the Employee may, in his sole discretion, name from
time to time in writing to the carrier providing the
policy;
b. REIMBURSEMENT FOR REASONABLE BUSINESS EXPENSES. The Company
shall reimburse the Employee for reasonable, ordinary and
necessary expenses, as defined by the Company's policy, incurred
by him in connection with the performance of his duties pursuant
to this Agreement.
6. TERMINATION OF EMPLOYMENT
a. TERMINATION UPON DEATH OR DISABILITY. The Employee's employment
and this Agreement shall terminate immediately upon the Employee's
death or upon the certification by a duly licensed physician that
the Employee is mentally or physically incapable of performing his
duties hereunder. He, or his estate or
3
heirs, as the case may be, shall be entitled to receive his rights
vested as of the date of such termination, prorated to that date,
and, in the case to termination on account of disability, he, or
his estate or heirs, as the case may be, shall be entitled to
receive disability benefits as provided under Paragraph 5a(ii), if
any.
b. TERMINATION FOR CAUSE. At any time during the Employment Term or
any Extended Employment Term hereunder, the Company shall be
entitled to terminate the Employee's employment for Cause. Such
Termination for Cause shall be effective immediately following
the delivery by the Company to the Employee of a written notice
thereof specifying the Cause. For this purpose, "Cause" shall
mean: (i) fraud or embezzlement by the Employee in the course of
employment; (ii) conviction of a felony or of any crime involving
moral turpitude; or (iii) willful misconduct or gross negligence
in the performance of his duties hereunder. In the event of such
termination, the Company shall pay the Employee his Salary
through the date of such termination.
c. TERMINATION WITHOUT CAUSE. Effective at any time on or after six
months from the date hereof during the Employment Term, or at any
rime during any Extended Employment Term, the Company may
terminate the Employee's employment without Cause upon not less
than 60 days prior written notice thereof by the Company to the
Employee. In the event of termination without Cause, the Employee
shall be entitled to receive his Salary through the effective
date of such termination and the Employee shall be entitled to
any incentive Compensation accrued or owed as of the date of such
termination, pro rated through the effective date of such
termination. In the event that the Employee shall accept any
other employment following the termination of his employment
hereunder, the amount of the compensation otherwise payable to
him hereunder shall be reduced by all compensation payable to him
on account of such other employment.
7. DISCOVERIES. The Employee will promptly disclose to the Company each
4
improvement, discovery, development, idea, and invention, whether
patentable or not, directly or indirectly relating to the business or
products of the Company, made or conceived, in whole or in part, by the
Employee while employed by the Company (whether or not during Company
working hours). Each such improvement, discovery, development, idea,
and invention shall be the sole and exclusive property of, and is
hereby assigned to, the Company.
8. COMPETITION. For a period of two years following the last payment of
Salary the Employee shell receive or be entitled to receive under this
Agreement, the Employee will not, without the prior written consent of
the Company, solicit or engage directly or indirectly in any business
or activity (either financially or as a shareholder, employee,
officer, partner. independent contractor, consultant, advisor or
owner, or in any other capacity, including, but not limited to, any
capacity calling for the making of any investment or rendition of
personal services or acts of management, operation or control) which
is competitive with the "Company Business" within the geographic area
in which any such Company Business is now being conducted by the
Company. For purposes of this Agreement, the term "Company Business"
shall mean the business of providing customer management services,
including but not limited to telephone follow-up services and
computerized database management.
9. CONFIDENTIALITY. The Employee agrees not to divulge, furnish or make
accessible to any person or entity, and to keep strictly and
absolutely confidential during the initial Employment Term, each
Extended Employment Term, if any, and forever thereafter, any
confidential or secret aspect of the business of the Company or any
related company, including, but not limited to, the finances, trade
secrets, customers, customer lists, suppliers, supplier lists, sales
or distribution agents and representatives, sales or distribution
agent and representative lists, methods, arts
5
or processes, and the business plans and marketing strategies of the
Company. All records, files, drawings, documents, models, equipment,
computer software and the like relating to the business of the Company
which the Employee shall prepare or use or come into contact with
shall remain the sole property of the Company.
10. INJUNCTIVE RELIEF. The Employee acknowledges that his compliance with
his agreements in Paragraphs 8 end 9 is necessary to protect the
goodwill and other proprietary interests of the Company. The Employee
acknowledges that a breach of his agreements in Paragraphs 8 or 9 will
result in irreparable and continuing damage to the Company and the
business of the Company for which there will be no adequate remedy at
law, and agrees that, in the event of any breach of the aforesaid
agreements, the Company and its successors and assigns shall be
entitled to injunctive relief and to such other and further relief as
may be proper.
11. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties with respect to the Employee's employment by the Company and
supersedes any prior agreements between them, whether oral or written.
12. AMENDMENTS. Any amendment to this Agreement shall be made in writing
and signed by both parties hereto.
13. ENFORCEABILITY. If any provision of this Agreement shall be found by a
court with proper jurisdiction to be invalid or unenforceable, in whole
or in part, then such provision shall be deemed to be modified,
narrowed, or restricted only to the limited extent and in the manner
necessary to render the same valid and enforceable, as the case may
require, and this Agreement shall be construed and enforced to the
maximum extent permitted by law as if such provision had been
originally incorporated herein as so modified, narrowed, or restricted.
6
14. SUCCESSORS. This Agreement shall inure to the benefit of and shall be
assignable to the successors of the business of the Company. This
Agreement is personal to the Employee and may not be assigned by him.
15. WAIVERS. A waiver by one party of any breach of or failure to comply
with any provision of this Agreement by the other party shall not be
construed as a waiver of any other provision, or a waiver of a breach
of any other provision, of this Agreement.
16. NOTICES. Unless otherwise notified in writing to the contrary, any
notice required or permitted by the terms hereof shall be effectively
delivered for all purposes if delivered personally, upon delivery, or
if mailed, upon deposit in the United States mail, registered or
certified, postage prepaid, and if directed to the Company at its
principal business office and in the case of the Employee, to his
address appearing on the records of the Company, or to such other
address as he may designate in writing to the Company.
17. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Maryland.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto to be
effective on the date first above written.
Sky Alland Research, Inc. Accepted
/s/ Xxxxxxx X. Berkeley /s/ Xxxxxxx X. Xxxxxx
---------------------------------- ------------------------------
Chairman of the Compensation Committee Xxxxxxx X. Xxxxxx
7
