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Exhibit 10.21A
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of March 23, 1998, by
and between Xxxx Xxxxxxx of Sterling, Virginia ("Employee") and DIDAX INC., a
Delaware business corporation with its principal place of business at 0000 Xxxx
Xxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 ("DIDAX" , each a "party" and collectively
the "parties." In consideration of the employment and continuing employment of
Employee by DIDAX, DIDAX and Employee hereby agree as follows:
1. Employment, Complete Agreement, and Modification. DIDAX agrees to employ
Employee and Employee agrees to be employed by DIDAX on the terms and conditions
set forth herein. This Agreement supersedes all previous representations, either
written or oral, between the parties relating to employment, services,
compensation, and/or benefits, including but not limited to the document titled
"Employment Agreement" made June 10, 1997. No provision of this Agreement may be
modified except by a writing signed by both parties.
2. Position. Subject to the Bylaws of DIDAX and to the direction of the Board
of Directors of DIDAX (the "Board"), Employee shall serve as directed by the
Chief Executive Officer ("CEO") of DIDAX, performing such duties and carrying
out such responsibilities as are assigned by the CEO, and in such additional
management position(s) as the CEO may designate, currently including continuing
to serve as Chief Financial Officer of DIDAX. As a bona fide occupational
qualification for this position, Employee will subscribe to the Statement of
Faith as stated in Article XIII, Section 2 of the Bylaws of DIDAX.
3. Compensation. During the Term of this Agreement, DIDAX shall pay to Employee
for all his services a base salary in periodic installments in accordance with
DIDAX's usual practice for its similarly situated employees, at an annual rate
of $90,000, to be increased to $100,000 if DIDAX's net quarterly revenues exceed
$200,000, and to $110,000 if DIDAX's net quarterly revenues exceed $400,000.
4. Incentive Compensation. In addition to the compensation provided in Section
3, Employee shall be entitled to receive payments under DIDAX's incentive
compensation and/or bonus program(s) (as in effect from time to time), if any,
in such amounts as are determined by the Board to be appropriate. Any incentive
compensation which is not deductible, in the opinion of DIDAX's counsel, under
Section 162(m) of the Internal Revenue Code shall be deferred and paid, without
interest, in the first year or years when and to the extent such payment may be
deducted.
5. Stock Options. In accordance with the provisions of DIDAX's 1997 Incentive
Stock Option Plan (the "Plan") and the specific authorization of the Board,
DIDAX hereby grants to Employee, subject to all of the terms and conditions of
the Plan and this Agreement, options to acquire shares of DIDAX's outstanding
common stock ("Option Stock") in the amount and per the vesting schedule as
indicated in Attachment A. In the event of termination of this Agreement,
Employee has the right to retain only those options that have vested prior to
the effective date of such termination, until their natural expiration. All
unvested options, warrants, and similar rights shall remain the property of
DIDAX.
6. Benefits. During the Term of this Agreement:
6.1. Employee shall be entitled to four (4) weeks of paid vacation time per
year, to be taken at times mutually acceptable to Employee and DIDAX.
6.2. DIDAX shall provide paid accident and health insurance for Employee and
his family comparable to that DIDAX provides for other DIDAX employees and
their families.
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6.3. DIDAX shall obtain at its expense (subject to Employee's insurability)
an insurance policy on the life of Employee, adjusted at policy anniversary
date, subject to the last sentence of this Section 6.3, in the minimum face
amount of Employee's current annual base salary. Employee shall have the
exclusive right to designate the beneficiaries of such policy and change
such beneficiaries from time to time. Such policy and the proceeds and cash
value thereof shall be the sole property of Employee and DIDAX shall not
retain any benefit therein.
6.4. Employee shall be entitled to sick leave benefits in accordance with
the customary policies of DIDAX for its executive officers, but in no event
less than one (1) week per year. In the event of Employee's Disability,
DIDAX shall provide disability insurance that shall provide for the payment
of Employee's annualized salary at the time of the Disability, for a period
of not less than one (1) year from the date of Disability. For purposes of
this Agreement, "Disability" shall mean a written determination by a
physician mutually agreeable to DIDAX and Employee (or, in the event of
Employee's total physical or mental disability, Employee's legal
representative) that Employee is physically or mentally unable to perform
his duties under this Agreement and that such disability has continued for
ninety (90) days and can reasonably be expected to continue for a period of
six (6) consecutive months or for shorter periods aggregating one hundred
and eighty (180) days in any twelve-(12)-month period.
6.5. In addition to the vacation provided pursuant to Section 6.1 hereof,
Employee shall be entitled to not less than ten (10) paid holidays (other
than weekends) per year, generally on such days consistent with DIDAX's
employment policies.
6.6. Employee shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by him (in accordance with the policies and
procedures established by DIDAX or the Board for similarly situated
employees of DIDAX) in performing services hereunder.
6.7. Employee shall be eligible to participate in benefits not inconsistent
or duplicative of those set forth in this Section 6 as DIDAX shall establish
or maintain for its employees or executives generally. Employee shall be
solely responsible for any applicable income taxes relating to benefits
provided under this Section 6.
7. Term and Termination. The Term of this Agreement shall begin on the date of
execution stated above and shall continue until this Agreement is terminated by
either party as provided herein. Either party may terminate this Agreement and
Employee's employment hereunder at any time, with or without cause, upon thirty
(30) days prior written notice of termination to the other party.
8. Severance. Upon termination of his employment by DIDAX, and execution of a
termination agreement, Employee shall continue to receive as severance his
current base salary and such benefits as are provided under Sections 6.2 and 6.3
for an additional six (6) months.
9. Protective Covenant. During the period of his employment by DIDAX, Employee
shall: (9.1) to the best of his ability, devote his full professional and
business time and best efforts to the performance of his duties for DIDAX and
its subsidiaries and affiliates; and (9.2) not acquire, assume, or participate
in, directly or indirectly, any position, investment, action or interest adverse
or antagonistic to DIDAX, its business or prospects, financial or otherwise.
10. Conciliation. The parties agree that any claim or dispute arising from or
related to this Agreement shall be settled by biblically based mediation and, if
necessary, legally binding arbitration in accordance with the Rules of Procedure
for Christian Conciliation of the Institute for Christian Conciliation, 0000
Xxxxxx X, Xxxxx 000, Xxxxxxxx, XX 00000. Judgment upon an arbitration decision
may be entered in any court otherwise having jurisdiction. These methods shall
be the sole remedy for any controversy or claim arising out of this Agreement
and the parties expressly waive their respective right to file a lawsuit in any
civil court against one
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another for such disputes, except to enforce an arbitration decision. The
parties agree that any claim or dispute hereunder shall expire if not brought
within one (1) year of arising. Any claim or dispute arising from or related to
the Noncompetition and Proprietary Information Agreement between DIDAX and
Employee, or any subsequent noncompetition, nonsolicitation, confidentiality,
and/or proprietary information agreement or covenant between DIDAX and Employee,
shall not be subject to this Section 10.
11. Governing Law. This Agreement shall be governed and interpreted in
accordance with the laws of the State of Virginia without regard to principles
of conflict of laws.
12. Severability. Should any provision or clause of this Agreement be held to be
void, invalid, or unenforceable, the remaining provisions of this Agreement
shall not be affected and shall continue in effect and the invalid provision
shall be deemed modified to the least degree necessary to remedy such
invalidity.
13. Assignment. This Agreement and the rights and obligations of the parties
shall bind and inure to the benefit of each of the parties hereto and shall also
bind and inure to the benefit of any successor or successors of DIDAX, but,
except as to any such successor of DIDAX, neither this Agreement nor any rights
or benefits hereunder may be assigned by either party without the prior written
consent of the other party.
14. Notice. Any notice required or permitted to be given hereunder shall be
effective when received and shall be sufficient if in writing and if personally
delivered or send by prepaid express delivery service, to the party to receive
such notice at its address set forth at the beginning of this Agreement or at
such other address as a party may be notice specify to the other.
15. No Conflicting Obligations. Each party represents and warrants that it is
under no obligation or restriction, nor will it assume any such obligation or
restriction, that does or would in any way violate, interfere, or conflict with
the performance to be rendered under this Agreement.
16. Agreement Read, Understood, and Fair. Employee has carefully read and
considered all provisions of this Agreement and agrees that all of the
restrictions set forth are fair and reasonable and are reasonably required for
the protection of the Interests of DIDAX.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE DULY EXECUTED THIS AGREEMENT AS OF
THE DATE FIRST WRITTEN ABOVE.
XXXX XXXXXXX DIDAX INC.
/s/ Xxxx Xxxxxxx /s/ Xxxxx X. Buick
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Xxxx Xxxxxxx Xxxxx X. Buick
("Employee") Chairman of the Board
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Spouse
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ATTACHMENT "A"
Xxxx Xxxxxxx
Exercise Expiration
Shares Price Vesting Date
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30,000 $3.00 One Third at end of 1996, 1997, 1998 03/31/06
6,331 $4.00 Fully Vested 12/31/06
1,405 $5.00 Fully Vested 03/31/07
1,290 $5.00 Fully Vested 06/30/07
31,434 $5.00 $1M ANNUAL REV. OR STOCK = OR greater than $7.50 FOR 2 Cons. MOS. 03/23/08
10,478 $5.00 $4M ANNUAL REV. AND PROFIT FOR 2 Consecutive QRTRS. 03/23/08
OR STOCK = OR greater than $10.00
10,478 $5.00 $10M ANNUAL REV. AND EPS greater than $0.25 03/23/08
4,191 $5.00 EPS = OR greater than $0.05 03/23/08
6,287 $5.00 EPS = OR greater than $0.10 03/23/08
8,382 $5.00 EPS = OR greater than $0.15 03/23/08
