EXHIBIT 10.28
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (the "Agreement"), made this 24th day of August,
2001, between Strategic Solutions Group, Inc., a Delaware Corporation with its
principal executive offices at 0000 Xxxxxxxxx Xxxx, Xxxxx X, Xxxxxxxxx, Xxxxxxxx
00000, (the "Company"), and XXXXXX XXXXXX, ("Employee").
INTRODUCTION
------------
The Company desires to continue the employment of Employee, and Employee
desires to continue his employment with the Company. In consideration of the
mutual covenants and promises contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
the parties hereto, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. Employment. The Company hereby continues the employment of Employee
----------
and Employee hereby accepts the continuation of his employment with the Company
upon the terms set forth in this Agreement.
2. Title Capacity. Employee shall serve as Chief Operating Officer and
--------------
President of Company and shall have such authority as is delegated to Employee
by the Chief Executive Officer and/or the Board of Directors and which is
generally inherent in his position.
Employee agrees to undertake the duties and responsibilities inherent in
Employee's position and such other duties and responsibilities as the Chief
Executive Officer and/or the Board of Directors shall from time to time
reasonably assign to Employee. Employee agrees to devote Employee's entire
business time to the business and interest of the Company, and those companies
affiliated with
Company during the Employment Period and Employee agrees to abide by the
ordinary, customary and reasonable rules, regulations, instructions, personnel
practices and policies of the Company and any changes therein which may be
adopted from time to time by the Company. Nothing herein contained shall prevent
Employee from trading for his own account or benefit in any investment which
does not involve Employee's active participation during business hours.
3. Compensation and Benefits.
-------------------------
3.1 Salary. The Company shall pay Employee such annual salary as is
------
set forth in the Compensation Schedule attached hereto and made a part hereof as
Exhibit "A". By mutual agreement, Exhibit "A" may be revised from time to time.
3.2 Fringe Benefits. Employee shall be entitled to participate in all
---------------
fringe benefit programs that the Company establishes and makes available to its
employees generally, if any. The Employee shall be entitled to vacation, sick
leave and personal leave each year of employment in accordance with Company
policy as revised from time to time, to be taken at such times as may be
mutually agreeable to Employee and the Company.
3.3 Reimbursement of Expenses.The Company shall reimburse Employee
-------------------------
for all reasonable travel, entertainment and other expenses incurred or paid by
Employee in connection with, or related to, the performance of Employee's
duties, responsibilities or services under this Agreement, upon presentation by
the Employee of documentation, expense statements, vouchers and/or such other
supporting information as the Company may request.
4. Non-Competition.
---------------
4.1 Employee agrees that, during the Employment Period and for a
period of time equal to the duration of Employee's employment with the Company,
but in no instance to exceed two (2) years after the termination of the
employment period for any reason.
(a) Employee will not recruit or solicit any employee of the
Company, or its subsidiaries and affiliated companies or otherwise induce any
employee to leave the employment of
2
the Company, Company's subsidiaries and affiliated companies to become an
employee of or otherwise become associated with Employee or any firm,
corporation, business or institution with which Employee is or may become
associated; and
(b) Employee will not solicit or divert the business or patronage
of any of the customers or accounts of the Company, Company's subsidiaries and
affiliated companies or prospective customers or accounts of the aforementioned,
which were contracted, solicited or served by the Company while Employee was
employed by the Company to a business directly or indirectly in competition with
Company.
As used in this Agreement, "competition", or any variation thereof, means
the Employee's engagement or participation in, or furnishing of aid or
assistance in connection with, the distribution, sale, marketing or rendering of
products or services of the type or kind distributed, sold, marketed or rendered
by the Company, Company's subsidiaries or affiliated companies at the
termination of the employment period, including those products or services that
the Company, Company's subsidiaries or affiliated companies, as the case may be,
was in the process of developing or designing for distribution, sale, marketing
or rendering at such time.
4.2 The parties to this Agreement consider the restrictions contained
herein reasonable. If, however, such restrictions are found by any court having
jurisdiction to be unreasonable because they are (or one of them is, as the case
may be) overly broad, then such restriction(s) will nevertheless remain
effective, but shall be considered amended in whatever manner is considered
reasonable by that court, and as so amended shall be enforced.
4.3 If there is any breach by the Employee of any of the covenants
contained in this Section 4., the damage to the Company, Company's subsidiaries
or affiliated companies will be substantial, although difficult to ascertain,
and money damages will not afford the injured party an adequate remedy.
Therefore, if any breach occurs, in addition to such other remedies as may be
provided by law, the Company, the Company's subsidiaries or affiliated
companies, as the case may be,
3
has the right to specific performance of the covenants of the Employee contained
in this Agreement by way of temporary or permanent injunctive relief.
5. Non-Disclosure. Employee agrees not to disclose to any third party, or
--------------
to use for Employee's own benefit or for the benefit of any third party, any
trade secrets or confidential or other proprietary information relating to the
products, services, markets, customers, suppliers or current or planned business
operations of the Company, Company's subsidiaries and affiliated companies
without the Company's prior written consent. Employee further agrees that all
documents, notes, letters, records, models, prototypes, computer programs and
other tangible and intangible evidence of such trade secrets or confidential or
other proprietary information are the sole and exclusive property of the
Company, Company's subsidiaries and affiliated companies; that Employee shall
surrender all such evidence in Employee's possession or control to the Company
upon the termination of the Employment Period or at any other time upon request
and that Employee shall not retain or use any copies or summaries thereof.
6. Inventions, Improvements, Copyrights, Ideas and Similar Creative
----------------------------------------------------------------
Property. Employee agrees that any inventions, improvements or ideas which
--------
Employee may make or conceive, and any copyrightable subject matter of which
Employee may be the author, either solely or jointly with others, which Employee
makes, conceives, or authors during the period of Employee's employment with the
Company, shall be the property of the Company, Company's subsidiaries or
affiliated companies, as the case may be, and that Employee will promptly
disclose all such inventions, improvements, ideas and material to the Company,
Company's subsidiary or affiliate, as the case may be, and that on request,
Employee will execute all applications, assignments, and other papers necessary
to enable the Company, Company's subsidiary or affiliate to obtain full
protection and title in all countries to such inventions, improvements, ideas
and matter.
7. Change of Control.
-----------------
(a) For the purpose of this Agreement, a "Change of Control" shall
mean:
4
(i) the acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, and as amended (the "Exchange Act)) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 50% or
more of either (i) the then outstanding shares of common stock of the Company
(the "Outstanding Company Common Stock") or (ii) the combined voting power of
the then outstanding voting securities of the Company entitled to vote generally
in the election of directors (the "Outstanding Company Voting Securities"),
which acquisition is affected without the consent of at least a majority in
interest of the shareholders of the Company as of the date hereof;
(ii) Approval by the shareholders of the Company of (i) a
complete liquidation or dissolution of the Company or (ii) the sale or other
disposition of all or substantially all of the assets of the Company.
(b) The Company and Employee hereby agree that, if Employee is in the
employ of the Company on the date on which a Change on Control occurs (the
"Change of Control Date"), the Company will continue to employ Employee and
Employee will remain in the employ of the Company for the period commencing on
the Change of Control Date and ending on the expiration of six (6) months, to
exercise such authority and perform such duties as are commensurate with the
authority being exercised and duties being performed by Employee immediately
prior to the Change of Control Date. If after a Change of Control, Employee is
requested and, in his sole and absolute discretion consents to change his
principal business location, the Company will reimburse Employee for his
relocation expenses, including without limitation, moving expenses, temporary
living and travel expenses for a time while arranging to move his residence to
the changed location, closing costs, if any, associated with the sale of his
existing residence, plus an additional amount representing a gross-up of any
state or federal taxes payable by Employee as a result of any such
reimbursements.
(c) During the six (6) months after the Change of Control Date, the
Company will continue to honor the terms of this Agreement, including as to Base
Salary and other compensation set
5
forth in Section 3. hereof.
(d) If during the six (6) month period after the Change of Control
Date (i) Employee's employment is terminated by the Company, or (ii) there shall
have occurred a material reduction in Employee's compensation or employment
related benefits, or a material change in Employee's status, working conditions
or management responsibilities, or a material change in the business objectives
or policies of the Company and Employee voluntarily terminates employment within
ninety (90) days of any such occurrence, or the last in a series of occurrences,
the Employee shall be entitled to receive as a severance payment, the
compensation and benefits which would have been payable to Employee under
Section 3. hereof to the end of the six (6) month term described in subsection
b. above.
8. Arbitration. Except as provided in Section 4.3, any dispute, including
-----------
a claimed breach of the terms hereof, arising out of or in connection with this
Agreement shall be resolved by arbitration conducted by the American Arbitration
Association in Annapolis, Maryland in accordance with its Rules then in
existence. The arbitrators shall not contravene or vary in any respect any of
the terms or provisions of this Agreement. The award of the arbitrators shall be
final and binding upon the parties hereto, their heirs, administrators,
executors, successors and assigns and judgment upon such award may be entered in
any court having jurisdiction thereof.
9. Notices. All notices required or permitted under this Agreement shall
-------
be in writing and shall be deemed effective upon personal delivery or upon
deposit in the United States Post Office, postage prepaid, by registered mail
return receipt requested, or when delivered by a nationally recognized overnight
delivery service issuing a receipt, addressed to the other party at the address
shown above or at such other address or addresses as either party shall provide
to the other.
10. Pronouns. Whenever the context may require, any pronouns used in this
--------
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural, and vice
versa.
6
11. Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties and supersedes all prior agreements and understandings,
whether written or oral, relating to the subject matter of this Agreement.
12. Amendment. This Agreement may be amended or modified only by a
---------
written instrument executed by both the Company and the Employee.
13. Governing Law. This Agreement shall be construed, interpreted and
-------------
enforced in accordance with the laws of the State of Maryland.
14. Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of both parties and their respective successors and
assigns, including any corporation with which or into which the Company may be
merged or which may succeed to its assets or business, provided however, that
the obligations of the Employee are personal and shall not be assigned by
Employee.
15. Miscellaneous.
-------------
15.1 No delay or omission by the Company in exercising any right
under this Agreement shall operate as a waiver of that or any other right. A
waiver or consent given by the Company on any one occasion shall be effective
only in that instance and shall not be construed as a bar or waiver of any right
on any other occasion.
15.2 The captions of the Sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any Section of this Agreement.
15.3 In the case any provision of this Agreement shall be
invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth above.
STRATEGIC SOLUTIONS GROUP, INC.
ATTEST:
(SEAL)
/s/ Xxxxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxxx
--------------------------------- -------------------------------
Xxxxxxx Xxxxxxx, Secretary Xxxx X. Xxxxxxx,
Chairman of the Board of Directors
Witness:
/s/ Xxxxxxx Xxxxxxx /s/ Xxxxxx Xxxxxx
--------------------------------- -------------------------------
Xxxxxx Xxxxxx, Employee
Date: August 24, 2001
----------------------------
8
EXHIBIT "A"
Annual Compensation in the amount of One Hundred Twenty-five Thousand
($125,000.00) Dollars payable in equal bi-weekly intervals plus such additional
compensation as determined by the Company based on Performance Standards to be
determined. For the year 2001, the employee's bonus shall be determined as set
forth on Schedule A to this Exhibit.
STRATEGIC SOLUTIONS GROUP, INC.
ATTEST:
(SEAL)
/s/ Xxxxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxxx
-------------------------------- -------------------------------------
Xxxxxxx Xxxxxxx, Secretary Xxxx X. Xxxxxxx,
Chairman of the Board of Directors
Witness:
/s/ Xxxxxxx Xxxxxxx /s/ Xxxxxx Xxxxxx
-------------------------------- -----------------------------------------
Xxxxxx Xxxxxx, Employee
Date: August 24, 2001
---------------------------
9
