Exhibit 10.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement"), dated as of September
23, 1997, by and between PHYSICIAN COMPUTER NETWORK, INC. (the
"Company"), a corporation organized under the laws of the State
of New Jersey and having an office and place of business at 0000
Xxx Xxxxxxxx Xxxx, Xxxxxx Xxxxxx, Xxx Xxxxxx 00000 and Xxxxxx X.
Xxxxx (the "Executive"), with an address at 000 Xxxx Xxxxxx,
Xxxxx, Xxxxxxxxxxxxx 00000.
B A C K G R O U N D
WHEREAS, simultaneously with the execution and delivery of
this Agreement, pursuant to an Agreement and Plan of Merger (the
"Merger Agreement") among Printed Products Group, Inc. ("PPG"),
the Executive, the Company and Solion Corp., a Delaware
corporation and a wholly-owned subsidiary of the Company
("Solion"), PPG is being merged with and into Solion, with Solion
as the surviving corporation of such merger (the "Merger"); and
WHEREAS, prior to the Merger, the Executive was the sole
shareholder of PPG and was actively involved in the business of
PPG and, as a result, possesses an intimate knowledge of PPG's
business; and
WHEREAS, the Company desires to continue to employ the
Executive as an executive of Solion, and the Executive desires to
accept such employment, upon the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable
consideration , the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows.
1. Employment. During the Agreement Term (as hereunder
defined) Executive shall be employed as Senior Vice President of
the Company and as President of Solion and shall perform all
duties and services incident to those positions as may be
assigned to him from time-to-time by the President or the Board
of Directors of the Company. The Executive shall hold such
additional executive offices and directorships of the Company and
Solion to which he may be elected or appointed from time-to-time
during the Agreement Term.
2. Responsibilities and Duties. During the Agreement Term,
Executive shall devote his full business time, attention, best
efforts and ability exclusively to the performance of services
for and on behalf of the Company and Solion.
3. Compensation. During the Agreement Term, as exclusive
compensation for his services and covenants hereunder, the
Company shall pay to the Executive a base salary of $3,846.15 per
week. In addition, during each year of the Agreement Term, the
Executive
shall be entitled to receive a bonus in an amount to be
determined at the sole discretion of the Board of Directors, such
bonus if any, to be on a basis consistent with bonuses awarded
to other senior executive employees of the Company; provided,
however, that the failure of the Company to award any such bonus
shall not give rise to any claim against the Company.
4. Expenses and Additional Benefits.
(a) Benefit Plans. During the Agreement Term, the
Executive shall be entitled to such insurance, disability and
health and medical benefits (each subject to standard employee
contributions) and be entitled to participate in such retirement
plans or programs as are generally made available to executive
employees of the Company and its affiliates; provided, that
Executive shall be required to comply with the conditions
attendant to coverage under such plans and shall comply with and
be entitled to benefits only in accordance with the terms and
conditions of such plans. The Company may withhold from any
benefits payable to Executive all federal, state, local and other
taxes and amounts as shall be permitted or required pursuant to
law, rule or regulation. All of the benefits to which Executive
may be entitled may be changed from time to time or withdrawn at
any time in the sole discretion of the Company; provided that
Executive shall at all times receive benefits consistent with
those generally made available to senior executives of the
Company and its affiliates.
(b) Business Expenses. During the Agreement Term, Executive
shall be reimbursed for business expenses incurred and accounted
for by him in the normal course of rendering services to the
Company or Solion, subject to the policies of the Company
regarding such expenses and the reimbursement thereof as they may
exist from time-to-time.
(c) Options. During the Agreement Term, the Executive may
be granted options to purchase shares of the Company's Common
Stock pursuant to the terms of the Company's Employee Stock
Option Plan in effect at the time of a grant. Executive shall be
granted such number of options, with such vesting schedules, as
shall be determined by the Compensation Committee of the Board of
Directors from time to time in its sole discretion; provided,
however, that all option grants to the Executive, if any, shall
be on a basis consistent with option grants to other senior
executive employees of the Company. It is understood and agreed
that all vesting, exercise periods, and any terms relating to any
option shall not in any way alter the terms of this Agreement or
Executive's employment hereunder and that all options, including,
without limitation, the grant, vesting and exercise thereof, are
subject to the provisions of the plan(s) and/or agreement(s)
under which they are issued or to be issued.
(d) Automobile. During the Agreement Term, the Company, at
its expense, will provide Executive with the use of a leased
vehicle (of a type and kind approved by the President or Board of
Directors of the Company), including all related insurance, fuel,
repairs and ordinary maintenance. Executive understands and
agrees that he shall at all times operate the vehicle in a safe
and proper manner and in accordance with law and shall at all
times maintain a valid driver's license.
5. Term of Employment. Executive's term of employment
under this Agreement shall commence on the date hereof (the
"Effective Date") and shall terminate on a date which is three
(3) years from the Effective Date (the "Agreement Term"), unless
extended in writing by both parties or earlier terminated in
accordance with the terms and conditions set forth herein.
6. Death and Disability.
(a) This Agreement shall immediately terminate on the date
of Executive's death, in which event the Company shall have no
further liability or obligation under this Agreement or otherwise
other than to pay to Executive's estate any salary, reimbursable
expenses and benefits owing to Executive through the date of
Executive's death. Executive's estate shall not be entitled to
any other compensation upon termination of this Agreement
pursuant to this Section 6(a).
(b) In the event of the Disability of Executive during the
Agreement Term, this Agreement shall immediately terminate and
the Company shall have no further liability or obligation under
this Agreement or otherwise except as specifically provided in
the following sentence. During the period of Disability, the
Company shall pay to Executive, for an aggregate period not to
exceed four (4) months (but not beyond the expiration of the
Agreement Term), an amount equal to the base salary set forth in
this Agreement for such period, less any (a) amount to which
Executive would be entitled under any policies of insurance or
otherwise, by virtue of such Disability with respect to such
period; and (b) applicable deductions, on the normal payroll
cycles of the Company. As used herein, "Disability" shall mean a
formally diagnosed mental or physical condition of Executive
which prevents Executive from performing his duties hereunder for
a period of one hundred eighty (180) consecutive days or an
aggregate of two hundred seventy (270) days within any eighteen
(18) month period.
7. Termination.
(a) The Company may at any time terminate the employment of
Executive for Cause (as hereinafter defined). Upon such
termination, the Company shall be released from all further
obligations under this Agreement, except that the Company shall
be obligated to pay Executive his salary, reimbursable expenses
and benefits owing to Executive through the day on which
Executive is terminated. Executive will not be entitled to any
other
compensation upon termination of this Agreement pursuant to this
Section 7(a).
(b) As used in this Agreement, "Cause" shall mean any one
or more of the following: (i) the commission by Executive, in the
course of the Executive's employment with the Company, of a
fraudulent act; (ii) the conviction of Executive of a felony,
whether or not committed in the course of Executive's employment
or consultancy with the Company; (iii) the willful refusal or
willful failure of Executive to carry out the reasonable
directions or instructions of the President or the Board of
Directors of the Company, provided, however, that termination of
Executive's employment or consultancy and this Agreement may only
be effected under the provisions of this subparagraph "7(b)(iii)"
after he shall first have been given written notice setting forth
the reasons for such termination and, within the thirty (30) day
period immediately following the delivery of such notice to
Executive, Executive shall not have ceased or otherwise cured (to
the reasonable satisfaction of the President or Board of
Directors of the Company, as the case may be) the activity or
activities or omission or omissions constituting the basis of
such termination, and further provided, that such thirty (30) day
notice shall not be required and no cessation and cure period
shall be allowed or otherwise provided for (A) in the event that
Executive willfully refuses or willfully fails to carry out the
reasonable directions or instructions of the President or the
Board of Directors of the Company on more than one occasion
during the Agreement Term; provided, that Executive shall have
been provided notice of such failure on the first occasion, or
(B) in the event that any such willful refusal or willful failure
results in a material adverse effect to the Company; and (iv) the
breach by Executive of any term or provision of this Agreement,
which breach is material and adverse to the Company.
(c) The Company may at any time terminate the employment of
Executive other than for Cause. In the event that the employment
of Executive is terminated other than for Cause or by reason of
the death or Disability of Executive, the Company's sole
liability and obligation shall be to pay to Executive all
reimbursable expenses and benefits owing to Executive through the
day on which Executive is terminated, plus an amount equal to the
base salary set forth in this Agreement on the normal payroll
cycles of the Company, less applicable deductions, for the period
commencing on the date of such termination and ending either (i)
on the first anniversary of the date of such termination, if the
employment of Executive is terminated prior to the one year
anniversary of the date of this Agreement, or (ii) on the six
month anniversary of the date of such termination, if the
employment of Executive is terminated on or after the one year
anniversary of the date of this Agreement; provided, however,
that all such payments shall cease upon the expiration of the
Agreement Term.
8. Non-Competition, Non-Solicitation and Non-Disclosure.
(a) Executive covenants and agrees that during the period
of his employment and for a period of one (1) year thereafter, he
will not, directly or indirectly, and whether as principal,
agent, officer, director, employee, consultant, or otherwise,
alone or in association with any other person, firm, corporation
or other business organization, be engaged in, concerned, take
part in, render services to, own, share in the earnings of, or
invest in the stock, bonds or other securities of any person,
firm, corporation, or other business organization engaged in a
business in the continental United States, which is the same,
similar to or in competition with any of the business operations
then or theretofore carried on by the Company or Solion (a
"Similar Business") without the prior written consent of the
Company; provided, however, that Executive may invest in stocks,
bonds or other securities of any Similar Business (but without
otherwise participating in the activities of such Similar
Business) if (A) such stock, bonds or other securities are listed
on any national or regional securities exchange or have been
registered under Section 12(g) of the Securities Exchange Act of
1934; and (B) his investment does not exceed, in the case of any
class of the capital stock of any one issuer, two (2%) percent of
the issued and outstanding shares, or in the case of bonds or
other securities, two (2%) of the aggregate principal amount
thereof issued and outstanding.
(b) Executive covenants and agrees that during the period
of his employment and for a period of one (1) year thereafter, he
will not, either in his individual capacity or as agent for
another, directly or indirectly, interfere with the Company's or
any of its subsidiaries' relationship with, or endeavor to entice
away from the Company, any person who has been an officer,
employee or agent of the Company at any time during the
immediately preceding year or in any other manner persuade or
attempt to persuade any such persons to discontinue their
relationship with the Company or divert from the Company any
business whatsoever, including, without limitation, by
influencing or attempting to influence any client, customer or
supplier of the Company to diminish or discontinue its business
with the Company.
(c) Executive shall at all times, both during and after the
Agreement Term, hold in confidence for the benefit of the
Company, and shall not use or disclose or permit the use of or
the disclosure to any third party, any and all trade secrets,
information, knowledge and data not generally known to, or easily
obtainable by, the public that he may have learned, discovered,
developed, conceived, originated or prepared during or as a
result of his relationship with the Company (whether as an
employee, a stockholder or otherwise) or any predecessor-in-interest to any of
the Company's business or assets with respect to the operations, business,
affairs, products, technology or services of the Company.
(d) Executive acknowledges and agrees that a breach by him
of any of the provisions of this Section 8 will cause irreparable
harm and damage to the Company and that, in the event of such
breach,
the Company shall have, in addition to any and all remedies at
law, the right to an injunction, specific performance or other
equitable relief to prevent the violation of the obligations of
Executive hereunder, without the necessity of proving such
irreparable harm or damage or the inadequacy of remedies at law
and without the necessity of posting any bond.
(e) Executive acknowledges and agrees that each provision
of this Section 8 shall be treated as a separate and independent
cause, and the unenforceability by any one clause shall in no way
impair the enforceability of any of the other clauses herein.
Furthermore, if one or more of the provisions contained in this
Section 8 shall for any reason be held to be excessively broad as
to geographical scope, duration, activity or otherwise so as to
be unenforceable at law, such provision or provisions shall be
construed by the appropriate judicial body by limiting and
reducing it or them, as the case may be, so as to be enforceable
to the maximum extent compatible with the applicable law as it
shall then appear.
9. Company Property. All records, files, lists, including
computer generated lists, drawings, documents, equipment and
similar items relating to the Company's business which Executive
shall prepare or receive from the Company shall remain the
Company's sole and exclusive property. Upon termination of this
Agreement, Executive shall promptly return to the Company all
property of the Company in his possession. Executive further
represents that he will not copy or cause to be copied, print out
or cause to be printed out any software, documents or other
materials originating with or belonging to the Company.
Executive additionally represents that, upon termination of his
employment with the Company, he will not retain in his possession
any such software, documents or other materials.
10. Remedy. It is mutually understood and agreed that
Executive's services are special, unique, unusual, extraordinary
and of an intellectual character giving them a peculiar value,
the loss of which cannot be reasonably or adequately compensated
in damages in an action at law. Accordingly, in the event of any
breach of this Agreement by Executive, including, but not limited
to, the breach of the non-disclosure, non-solicitation and non-compete clauses
under Section 8 hereof, the Company shall be entitled to equitable relief by
way of injunction or otherwise in addition to damages the Company may be
entitled to recover. In addition, the Company shall be entitled to
reimbursement from Executive, upon demand, of any and all reasonable
attorneys' fees and expenses incurred by it in enforcing any term or
provision of this Agreement.
11. Survival. Sections 8 through 10 hereof shall survive
the expiration or termination of this Agreement by any reason.
12. Developments.
(a) If at any time or times during the Agreement Term,
Executive shall (either alone or with others) make, conceive,
discover or reduce to practice any invention, modification,
discovery, design, development, improvement, process, software
program, work of authorship, documentation, formula, data,
technique, know-how, secret or intellectual property right
whatsoever or any interest therein, whether or not patentable or
registrable under copyright or similar statutes or subject to
analogous protection (herein called "Developments"), that (i)
relates to the business of the Company or any customer of or
supplier to the Company or any of the products or services being
developed, manufactured or sold by the Company or which may be
used in relation therewith, (ii) results from tasks assigned to
Executive by the Company, or (iii) results from the use of
premises or personal property (whether tangible or intangible)
owned, leased or contracted for by the Company, such Developments
and the benefits thereof shall immediately become the sole and
absolute property of the Company and its assigns, and Executive
shall promptly disclose to the Company (or any persons designated
by it) each such Development and Executive hereby assigns any
rights he may have or acquire in the Developments and benefits
and/or rights resulting therefrom to the Company and its assigns
without further compensation and shall communicate, without cost
or delay, and without publishing the same, all available
information relating thereto (with all necessary plans and
models) to the Company.
(b) Upon disclosure of each Development to the Company,
Executive will, during his employment and at any time thereafter,
at the request and cost of the Company, sign, execute, make and
do all such deeds, documents, acts and things as the Company and
its duly authorized agents may reasonably require:
(i) to apply for, obtain and vest in the name of the
Company alone (unless the Company otherwise directs) letters
patent, copyrights or other analogous protection in any country
throughout the world and when so obtained or vested to renew and
restore the same; and
(ii) to defend any opposition proceedings in respect
of such applications and any opposition proceedings or petitions
or applications for revocation of such letters patent, copyright
or other analogous protection.
(c) In the event the Company is unable, after reasonable
effort, to secure Executive's signature on any letters patent,
copyright or other analogous protection relating to a
Development, whether because of Executive's physical or mental
incapacity or for any other reason whatsoever, Executive hereby
irrevocably designates and appoints the Company and its duly
authorized officers and agents as Executive's agent and attorney-in-fact, to act
for and in Executive's behalf and stead of execute and file any such
application or applications and to do all other lawfully permitted acts to
further the prosecution and issuance of letters
patent, copyright or other analogous protection thereon with the
same legal force and effect as if executed by Executive.
13. Key Man Insurance. The Company may, as it determines
in its sole and absolute discretion, at its sole cost and
expense, maintain a key man life insurance policies on the life
of Executive, in such amounts as the Company shall determine from
time-to-time. Executive agrees to cooperate with the Company in
obtaining and maintaining such policy(ies), including, without
limitation, completing all applications therefor and submitting
to such physical and mental examinations as the insurance
company(ies) issuing such policy(ies) may require from
time-to-time.
14. Taxes. Executive understands and acknowledges that he
may incur personal tax liability relating to some or an of the
items described in this Agreement and he agrees that he shall be
solely responsible for the payment thereof and the maintenance of
any records relating thereto.
15. Notices. All notices given hereunder shall be in
writing and shall be deemed effectively given when mailed, if
sent by registered or certified mail, return receipt requested,
or when actually received by the party for whom intended, if sent
by any other means, addressed to Executive at his address set
forth on the first page of this Agreement; with a copy to Xxx X.
Xxxxxxxx III, Esq., Xxxxxxx, Xxxxxx & Xxxxxxxx, P.C., 00 Xxxxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000; and to the Company at its address
set forth on the first page of this Agreement, Attention:
President; with a copy to Xxxxxx Xxxxxx Butowsky Xxxxxxx Shalov &
Xxxx, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxxx X. Xxxxx, Esq., or at such other address as such party
shall have designated by a notice given in accordance with this
Section 15.
16. Assignment. Neither this Agreement, nor any of
Executive's rights, powers, duties or obligations hereunder, may
be assigned by Executive. The Company may assign this Agreement
at any time and from time-to-time to any party succeeding to all
or substantially all of the business or assets of the Company
and/or Solion (whether by merger, acquisition, sale or
otherwise). This Agreement shall be binding on the successors and
permitted assigns of the parties hereto. There are no third party
beneficiaries of this Agreement.
17. Governing Law. This Agreement shall be interpreted in
accordance with the laws of the State of New Jersey without
regard to the conflicts of law provisions thereof.
18. Entire Agreement. This Agreement sets forth the entire
understanding between the parties concerning the terms of
Executive's employment with the Company and no other agreement,
document, statement or understanding exists with respect thereto.
This Agreement can only be amended by a written amendment
expressly referencing this Agreement, signed by an authorized
representative
of the Company and approved by the Board of Directors of the
Company.
19. Severability. The invalidity of any term or terms of
this Agreement shall not invalidate or otherwise affect any other
term of this Agreement, which shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto executed or caused
this Agreement to be executed as of the day and year first above
written.
PHYSICIAN COMPUTER NETWORK, INC.
By: \s\ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxxx, Secretary
\s\ Xxxxxx Xxxxx
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XXXXXX X. XXXXX
