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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS AGREEMENT made effective as of the 14th day of October, 1996 (the
"Effective Date") by and between AlphaNet Solutions, Inc. a New Jersey
corporation with its principal place of business at 0 Xxxxxxxxx Xxxxxx, Xxxxx
Xxxxxx, Xxx Xxxxxx 00000 (the "Company"), and Sophien Bennaceur (the
"Employee").
WITNESSETH:
WHEREAS, the Company desires to secure the employment of the Employee
in accordance with the provisions of this Agreement; and
WHEREAS, the Employee desires and is willing to accept employment with
the Company in accordance herewith.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Term. The Company hereby agrees to employ the Employee and the
Employee hereby agrees to serve the Company pursuant to the terms and conditions
of this Agreement as Executive Vice President and Chief Operating Officer of the
Company, or in a position at least commensurate therewith in all material
respects, for a term commencing on the Effective Date hereof and expiring on the
first anniversary thereof, provided that the Employee is elected to such office,
or a comparable or higher office, at each annual meeting of the Board of
Directors of the Company (the "Board of Directors") during the term of this
Agreement. If the Employee shall not be so elected at any such annual meeting of
the Board of Directors, the Employee's
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employment hereunder shall forthwith terminate and the Company shall be
obligated to compensate the Employee in accordance with Section 6(a) of this
Agreement.
2. Positions and Duties. The Employee's duties hereunder shall be those
which shall be prescribed from time to time by the Board of Directors in
accordance with the bylaws of the Company and shall include such executive
duties, powers and responsibilities as customarily attend the office of
Executive Vice President and Chief Operating Officer of a company comparable to
the Company. The Employee will hold, in addition to the offices of Executive
Vice President and Chief Operating Officer of the Company, such other executive
offices in the Company and its subsidiaries to which he may be elected,
appointed or assigned by the Board of Directors from time to time and will
discharge such executive duties in connection therewith. During the employment
period, the Employee's position (including status, offices and reporting
requirements), authority, duties and responsibilities shall be at least
commensurate in all material respects with the most significant of those held,
exercised and assigned immediately preceding the Effective Date. The Employee
shall devote his full working time, energy and skill (reasonable absences for
vacations and illness excepted), to the business of the Company as is necessary
in order to perform such duties faithfully, competently and diligently;
provided, however, that notwithstanding any provision in this Agreement to the
contrary, the Employee shall not be precluded from devoting reasonable periods
of time required for serving as a member of boards of companies or organizations
which have been approved by the Board of Directors so long as such memberships
or activities do not interfere with the performance of the Employee's duties
hereunder.
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3. Compensation. During the term of this Agreement, the Employee shall
receive, for all services rendered to the Company hereunder, the following
(hereinafter referred to as "Compensation"):
(a) Base Salary. For the term hereof, the Employee shall be
paid an annual base salary equal to two hundred thousand dollars ($200,000). The
Employee's annual base salary shall be payable in equal installments in
accordance with the Company's general salary payment policies but no less
frequently than monthly.
(b) Bonuses. The Employee shall be eligible for and may
receive bonuses. The amount of such bonuses, if any, shall be solely within the
discretion of the Board of Directors or, if formed, the Compensation Committee
thereof.
(c) Incentive Compensation. The Employee shall be eligible for
awards from the Company's incentive compensation plans, including without
limitation any stock option plans, applicable to high level executive officers
of the Company or to key employees of the Company or its subsidiaries, in
accordance with the terms thereof and on a basis commensurate with his position
and responsibilities.
(d) Benefits. The Employee and his "dependents," as that term
may be defined under the applicable benefit plan(s) of the Company, shall be
included, to the extent eligible thereunder, in any and all plans, programs and
policies which provide benefits for employees and their dependents. Such plans,
programs and policies may include health care insurance, long-term disability
plans, life insurance, supplemental disability insurance, supplemental life
insurance, holidays and other similar or comparable benefits made available to
the Company's employees.
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(e) Expenses. Subject to and in accordance with the Company's
policies and procedures, the Employee hereby is authorized to incur, and, upon
presentation of itemized accounts, shall be reimbursed by the Company for, any
and all reasonable and necessary business-related expenses, which expenses are
incurred by the Employee on behalf of the Company or any of its subsidiaries. In
addition to the foregoing, the Company shall reimburse the Employee for a
maximum of $15,000 in relocation expenses, including food, lodging, travel and
moving expenses incurred by Employee during the term of this Agreement.
4. Absences. The Employee shall be entitled to vacations, absences
because of illness or other incapacity, and such other absences, whether for
holiday, personal time, or for any other purpose, as set forth in the Company's
employment manual or current procedures and policies, as the case may be, as
same may be amended from time-to-time.
5. Termination. In addition to the events of termination and expiration
of this Agreement provided for in Section 1 hereof, the Employee's employment
hereunder may be terminated only as follows:
(a) Without Cause. The Company may terminate the Employee's
employment hereunder without cause and for any reason upon action by the Board
of Directors and upon no less than fourteen (14) days prior written notice to
Employee. The Employee may terminate employment hereunder without cause and for
any reason upon not less than fourteen (14) days prior written notice to the
Company. Employee acknowledges that the employment relationship defined herein
is an employment-at-will relationship.
(b) For Cause, by the Company. The Company may terminate the
Employee's employment hereunder for cause immediately and with prompt notice to
the Employee, which
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cause shall be determined in good faith solely by the Board of Directors.
"Cause" for termination shall include, but is not limited to, the following
conduct of the Employee:
(1) Material breach of any provision of this Agreement by the
Employee, which breach shall not have been cured by the Employee within ten (10)
days of receipt of written notice of said breach;
(2) Misconduct as an employee of the Company, including but
not limited to: misappropriating any funds or property of the Company;
attempting to willfully obtain any personal profit from any transaction in which
the Employee has an interest which is adverse to the interests of the Company;
or any other act or omission which substantially impairs the Company's ability
to conduct its ordinary business in its usual manner;
(3) Unreasonable neglect or refusal to perform the duties
assigned to the Employee under or pursuant to this Agreement;
(4) Conviction of a felony; or
(5) Any other act or omission which subjects the Company or
any of its subsidiaries to substantial public disrespect, scandal or ridicule.
(c) For Good Reason by Employee. The Employee may terminate employment
hereunder for good reason immediately and with prompt notice to the Company.
"Good reason" for termination by the Employee shall include, but is not limited
to, the following conduct of the Company:
(1) Material breach of any provision of this Agreement by the
Company, which breach shall not have been cured by the Company within thirty
(30) days of receipt of written notice of said breach;
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(2) Failure to maintain the Employee in a position
commensurate with that referred to in Section 2 of this Agreement; or
(3) The assignment to the Employee of any duties
inconsistent with the Employee's position, authority, duties or responsibilities
as contemplated by Section 2 of this Agreement, or any other action by the
Company which results in a diminution of such position, authority, duties or
responsibilities, excluding for this purpose any isolated action not taken in
bad faith and which is promptly remedied by the Company after receipt of notice
thereof given by the Employee.
(d) Death. The period of active employment of the Employee
hereunder shall terminate automatically in the event of his death.
(e) Disability. In the event that the Employee shall be unable
to perform duties hereunder for a period of ninety (90) consecutive calendar
days by reason of disability as a result of illness, accident or other physical
or mental incapacity or disability, the Company may, in its discretion, by
giving written notice to the Employee, terminate the Employee's employment
hereunder as long as the Employee is still disabled on the effective date of
such termination.
(f) Mutual Agreement. This Agreement may be terminated at any
time by mutual agreement of the Employee and the Company.
6. Compensation in the Event of Termination. In the event that the
Employee's employment pursuant to this Agreement terminates prior to the end of
the term of this Agreement because he is not reelected pursuant to Section 1 or
for a reason provided in Section 5 hereof, the Company shall pay the Employee
compensation as set forth below:
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(a) Employee not Elected by Board of Directors; By Employee
for Good Reason; By Company Without Cause. In the event that the Employee's
employment hereunder is terminated: (i) because the Employee is not elected to
the office of Chairman of the Board, President and Chief Executive Officer of
the Company, or in a position at least commensurate therewith in all material
respects, at any annual meeting of the Company's Board of Directors during the
term of this Agreement, as contemplated by Section 1 hereof; (ii) by the
Employee for good reason pursuant to Section 5(c) hereof; or (iii) by the
Company without cause, then the Company shall continue to pay or provide, as
applicable, the following compensation to the Employee:
(1) Six months of Employee's annual base salary as
set forth in Section 3(a) hereof; and
(2) Continuing coverage, but only to the extent
required by law, for the Employee and his eligible dependents under all of the
Company's benefit plans, programs and policies in effect as of the date of
termination.
Such compensation shall continue to be paid or
provided, as applicable, in the same manner as before termination, and for a
period of time ending on the date when the term of this Agreement would
otherwise have expired in accordance with Section 1 of this Agreement. The
Employee shall not be required to mitigate the amount of any payment provided
for in this Section 6(a) by seeking employment or otherwise, nor shall any
amounts received from employment or otherwise by the Employee offset in any
manner the obligations of the Company hereunder.
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(b) By Company Upon Termination of Agreement Due to Employee's
Death or Disability. In the event of the Employee's death or if the Company
shall terminate the Employee's employment hereunder for disability pursuant to
Section 5(e) hereof, the base salary payable hereunder shall continue to be paid
at the then current rate for three (3) months after the termination of
employment to the Employee or his personal representative, as applicable.
(c) By Company For Cause or By Employee Without Good Reason.
In the event that (i) the Company shall terminate the Employee's employment
hereunder for cause pursuant to Section 5(b) hereof or (ii) the Employee shall
terminate employment hereunder without "good reason" as provided in Section 5(c)
hereof, the Company shall not be obligated to pay the Employee any compensation
except for salary and other Compensation which may have been earned and are due
and payable but which have not been paid as of the date of termination.
7. Effect of Termination. In the event of expiration or early
termination of this Agreement as provided herein, neither the Company nor the
Employee shall have any remaining duties or obligations hereunder except that:
(a) The Company shall:
(1) Pay the Employee's accrued salary and any
other accrued benefits under Section 3 hereof;
(2) Reimburse the Employee for expenses already
incurred in accordance with Section 3(e) hereof;
(3) To the extent required by law, pay or
otherwise provide for any benefits, payments or continuation or conversion
rights in accordance with the provisions of any benefit plan of which the
Employee or any of his dependents is or was a participant; and
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(4) Pay the Employee or his beneficiaries any
compensation due pursuant to Section 6 hereof; and
(b) The Employee shall remain bound by the terms of Section 8
hereof and Exhibit A attached hereto.
8. Restrictive Covenant. (a) The Employee acknowledges and agrees that
he has access to secret and confidential information of the Company and its
subsidiaries and that the following restrictive covenant is necessary to protect
the interests and continued success of the Company. Except as otherwise
expressly consented to in writing by the Company, until the termination of the
Employee's employment (for any reason and whether such employment was under this
Agreement or otherwise) and thereafter for the period of time, not to exceed
eighteen (18) months, for which the Employee is being compensated at an annual
rate of at least 50% of the last annual base salary received by the Employee
under Section 3(a) hereof (the "Restricted Period"), the Employee shall not,
directly or indirectly, acting as an employee, owner, shareholder, partner,
joint venturer, officer, director, agent, salesperson, consultant, advisor,
investor or principal of any corporation or other business entity:
(i) engage, in any state or territory of the United States of
America where the Company is doing business (determined as of the date the
Employee's employment with the Company terminates), in direct or indirect
competition with the business conducted by the Company or activities which the
Company plans to conduct with one year (determined as of the date the Employee's
employment with the Company terminates);
(ii) request or otherwise attempt to induce or influence,
directly or indirectly, any present customer or supplier, or prospective
customer or supplier, of the Company, or other
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persons sharing a business relationship with the Company, to cancel, limit or
postpone their business with the Company, or otherwise take action which might
be to the material disadvantage of the Company; or
(iii) hire or solicit for employment, directly or indirectly,
or induce or actively attempt to influence, any Employee of the Company or any
Affiliate, as such term is defined in the Securities Act of 1933, as amended, to
terminate his or her employment or discontinue such person's consultant,
contractor or other business association with the Company.
(b) If the Employee violates any of the restrictions contained
in Section 8(a) above, the Restrictive Period shall be increased by the period
of time from the commencement of any such violation until the time such
violation shall be cured by the Employee to the satisfaction of the Company, and
the Company may withhold any and all payments, except salary, otherwise due and
owing to the Employee under this Agreement.
(c) In the event that either the geographical area or the
Restrictive Period set forth in Section 8(a) of this Agreement is deemed to be
unreasonably restrictive in any court proceeding, the court may reduce such
geographical area and Restrictive Period to the extent which it deems reasonable
under the circumstances.
(d) Nothing in this Section 8, whether express or implied,
shall prevent the Employee from being a holder of securities of a company whose
securities are registered under Section 12 of the Securities Exchange Act of
1934, as amended; provided, however, that the Employee holds of record and
beneficially less than two percent (2%) of the votes eligible to be cast
generally by holders of securities of such company for the election of
directors.
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(e) The Employee, as a condition of his continued employment,
acknowledges and agrees that he has reviewed and will continue to be bound by
all of the provisions set forth in Exhibit A attached hereto, which is
incorporated herein by reference and made a part hereof as though fully set
forth herein, during the term of this Agreement, and any time hereafter.
(f) Employee acknowledges and agrees that in the event of a
breach or threatened breach of the provisions of this Section 8 by Employee the
Company may suffer irreparable harm and therefore, the Company shall be
entitled, to the extent permissible by law, immediately to cease to pay or
provide the Employee any compensation being, or to be, paid or provided to him
pursuant to Sections 3 or 6 of this Agreement, and also to obtain immediate
injunctive relief restraining the Employee from conduct in breach or threatened
breach of the covenants contained in this Section 8. Nothing herein shall be
construed as prohibiting the Company from pursuing any other remedies available
to it for such breach or threatened breach, including the recovery of damages
from the Employee.
9. Resolution of Differences Over Breaches of Agreement. Except as
otherwise provided herein, any controversy or claim arising out of, or relating
to, this Agreement, or the breach hereof, shall be reviewed in the first
instance in accordance with the Company's internal review procedures, if any,
with recourse thereafter--for temporary or preliminary injunctive relief
only--to the courts having jurisdiction thereof, and if any relief other than
injunctive relief is sought, then to arbitration in Xxxxxx County, New Jersey in
accordance with the rules of the American Arbitration Association, and judgment
upon the award rendered by the Arbitrator(s) may be entered in any court having
jurisdiction thereof.
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10. Waiver. The waiver by a party hereto of any breach by the other
party hereto of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach by a party hereto.
11. Assignment. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the Company, and the Company shall be
obligated to require any successor to expressly assume its obligations
hereunder. This Agreement shall inure to the benefit of and be enforceable by
the Employee or his legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. The Employee may not
assign any of his duties, responsibilities, obligations or positions hereunder
to any person and any such purported assignment by him shall be void and of no
force and effect.
12. Notices. Any notices required or permitted to be given under this
Agreement shall be sufficient if in writing, and if personally delivered or when
sent by first class certified or registered mail, postage prepaid, return
receipt requested--in the case of the Employee, to his residence address as set
forth below, and in the case of the Company, to the address of its principal
place of business as set forth below, in care of the Board of Directors--or to
such other person or at such other address with respect to each party as such
party shall notify the other in writing.
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13. Construction of Agreement.
(a) Governing Law. This Agreement shall be governed by and its
provisions construed and enforced in accordance with the internal laws of the
State of New Jersey without reference to its principles regarding conflicts of
law.
(b) Severability. In the event that any one or more of the
provisions of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
(c) Headings. The descriptive headings of the several
paragraphs of this Agreement are inserted for convenience of reference only and
shall not constitute a part of this Agreement.
14. Entire Agreement. This Agreement contains the entire agreement of
the parties concerning the Employee's employment and all promises,
representations, understandings, arrangements and prior agreements on such
subject are merged herein and superseded hereby. The provisions of this
Agreement may not be amended, modified, repealed, waived, extended or discharged
except by an agreement in writing signed by the party against whom enforcement
of any amendment, modification, repeal, waiver, extension or discharge is
sought. No person acting other than pursuant to a resolution of the Board of
Directors shall have authority on behalf of the Company to agree to amend,
modify, repeal, waive, extend or discharge any provision of this Agreement or
anything in reference thereto or to exercise any of the Company's rights to
terminate or to fail to extend this Agreement.
*.*.*.*.*.*.*.*.*.*
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and attested by its duly authorized officers, and the Employee has set
his hand, all as of the day and year first above written.
AlphaNet Solutions, Inc.,
By: /s/ XXXX GANG
------------------------------
Name: Xxxx Gang
Title: President and Chief
Executive Officer
(Principal Executive
Officer)
EMPLOYEE
/s/ SOPHIEN BENNACEUR
---------------------------------
Sophien Bennaceur
Address: 0 Xxxxxxxxx Xxx.
-------------------------
Cedar Knolls
-------------------------
Xxx Xxxxxx 00000
-------------------------
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EXHIBIT A
ALPHANET SOLUTIONS, INC.
EMPLOYEE'S
INVENTION ASSIGNMENT AND CONFIDENTIALITY
AGREEMENT
In consideration of my employment or continued employment by AlphaNet
Solutions, Inc., a New Jersey corporation or any subsidiary or parent
corporation thereof (the "Company"), I hereby represent and agree as follows:
1. I understand that the Company is engaged in a continuous program
consisting of the sale and marketing of computer products and services, systems
integration services, and related business products and services and that I may
have access to or acquire information with respect to Confidential Information
(as defined below), including hardware and apparatus, processes and methods,
scientific, technical and/or business innovations.
2. Disclosure of Innovations. I agree to disclose in writing to the
Company all inventions, improvements and other innovations of any kind that I
may make, conceive, develop or reduce to practice, alone or jointly with others,
during the term of my employment with the Company, whether or not they are
related to my work for the Company and whether or not they are eligible for
patent, copyright, trademark, trade secret or other legal protection
("Innovations"). Examples of Innovations shall include, but are not limited to,
discoveries, research, inventions, formulas, techniques, processes, know-how,
marketing plans, new product plans, production processes, advertising, packaging
and marketing techniques and improvements to computer hardware or software.
3. Assignment of Ownership of Innovations. I agree that all Innovations
will be the sole and exclusive property of the Company and I hereby assign all
of my rights, title or interest in the Innovations and in all related patents,
copyrights, trademarks, trade secrets, rights of priority and other proprietary
rights to the Company. At the Company's request and expense, during and after
the period of my employment with the Company, I will assist and cooperate with
the Company in all respects and will execute documents, and, subject to my
reasonable availability, give testimony and take further acts requested by the
Company to obtain, maintain, perfect and enforce for the Company patent,
copyright, trademark, trade secret and other legal protection for the
Innovations. I hereby appoint the President and Chief Executive Officer of the
Company as my attorney-in-fact to execute documents on my behalf for this
purpose.
4. Protection of Confidential Information of the Company. I understand
that my work as an employee of the Company creates a relationship of trust and
confidence between myself and the Company. During and after the period of my
employment with the Company, I will not use or disclose or allow anyone else to
use or disclose any "Confidential Information" (as defined below) relating to
the Company, its products, suppliers or customers except as may
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be necessary in the performance of my work for the Company or as may be
authorized in advance by appropriate officers of the Company. "Confidential
Information" shall include innovations, business strategies, financial
information, forecasts, personnel information, customer lists, trade secrets and
any other non-public technical or business information, whether in writing or
given to me orally, which I know or have reason to know the Company would like
to treat as confidential for any purpose, such as maintaining a competitive
advantage or avoiding undesirable publicity. I will keep Confidential
Information secret and will not allow any unauthorized use of the same, whether
or not any document containing it is marked as confidential. These restrictions,
however, will not apply to Confidential Information that has become known to the
public generally through no fault or breach of mine or that the Company
regularly gives to third parties without restriction on use or disclosure. Upon
termination of my work with the Company, I will promptly deliver to the Company
all documents and materials of any nature pertaining to my work with the Company
and I will not take with me any documents or materials or copies thereof
containing any Confidential Information.
5. Non-Solicitation. I understand that my work as an employee of the
Company creates a relationship of trust and confidence between myself and the
Company. During and after the period of my employment with the Company, I will
not request or otherwise attempt to induce or influence, directly or indirectly,
any present customer or supplier, or prospective customer or supplier, of the
Company, or other persons sharing a business relationship with the Company to
cancel, to limit or postpone their business with the Company, or otherwise take
action which might be to the material disadvantage of the Company. During and
after the period of my employment with the Company, I will not hire or solicit
for employment, directly or indirectly, or induce or actively attempt to
influence, any Employee of the Company or any Affiliate of the Company, as such
term is defined in the Securities Act of 1933, as amended, to terminate his or
her employment or discontinue such person's consultant, contractor or other
business association with the Company.
6. Other Agreements. I represent that my performance of all the terms
of this Agreement and my duties as an employee of the Company will not breach
any invention assignment agreement, confidential information agreement,
non-competition agreement or other agreement with any former employer or other
party. I represent that I have not and will not bring with me to the Company or
use in the performance of my duties for the Company any documents or materials
of a former employer that are not generally available to the public.
7. Disclosure of this Agreement. I hereby authorize the Company to
notify others, including but not limited to customers of the Company and any of
my future employers, of the terms of this Agreement and my responsibilities
hereunder.
8. Injunctive Relief. I understand that in the event of a breach or
threatened breach of this Agreement by me the Company may suffer irreparable
harm and monetary damages alone would not adequately compensate the Company. The
Company will therefore be entitled to injunctive relief to enforce this
Agreement.
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9. Enforcement and Severability. I acknowledge that each of the
provisions in this Agreement are separate and independent covenants. I agree
that if any court shall determine that any provision of this Agreement is
unenforceable with respect to its term or scope such provision shall nonetheless
be enforceable by any such court upon such modified term or scope as may be
determined by such court to be reasonable and enforceable. The remainder of this
Agreement shall not be affected by the unenforceability or court ordered
modification of a specific provision.
10. Governing Law. I agree that this Agreement shall be governed by and
construed in accordance with the laws of the State of New Jersey.
11. Superseding Agreement. I understand and agree that this Agreement
contains the entire agreement of the parties with respect to subject matter
hereof and supersedes all previous agreements and understandings between the
parties with respect to its subject matter.
12. Acknowledgments. I acknowledge that I have read this agreement, was
given the opportunity to ask questions and sufficient time to consult an
attorney and I have either consulted an attorney or affirmatively decided not to
consult an attorney. I understand that this agreement does not alter the terms
of an executed Employment Agreement with the Company, or in the absence of an
Employment Agreement, this Agreement does not alter my status as an employee at
will and that my employment may be terminated at any time, with or without
cause. I also understand that my obligations under this Agreement survive the
termination of my employment with the Company.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written below.
Date: October 14, 1996 /s/ Sophien Bennaceur
------------------------------------
Name of Employee: Sophien Bennaceur
AlphaNet Solutions, Inc.
Date: October 14, 1996 By: /s/ Xxxx Gang
--------------------------------
Name: Xxxx Gang
Title: President and Chief
Executive Officer
(Principal Executive
Officer)
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