Exhibit 10(nn)
SEPARATION AND CONSULTING AGREEMENT
THIS SEPARATION AND CONSULTING AGREEMENT (this "Agreement") dated
October 20, 1997, by and between BASE TEN SYSTEMS, INC., a New Jersey
corporation ("Base Ten") and XXXXX X. XXXXXXXX ("Xxxxxxxx").
WHEREAS, Xxxxxxxx has determined to retire from his position as director,
Chairman of the Board, President and Chief Executive Officer of the Company and
its subsidiaries (collectively the "Company"); and
WHEREAS, the Company desires that Xxxxxxxx'x substantial experience and
knowledge concerning all aspects of the Company's business, operations,
products, customers and personnel shall continue to be available to the Company;
and
WHEREAS, Xxxxxxxx is willing to remain available as a consultant to the
Company, for the period and in accordance with the terms set forth in this
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth below, the parties agree as follows:
1. RETENTION OF XXXXXXXX AS CONSULTANT. Effective as of the date on
which Xxxxxxxx resigns as President and Chief Executive Officer of the Company
(the "Effective Date"), the Company shall and hereby does retain Xxxxxxxx, and
Xxxxxxxx hereby agrees to serve the Company, as a consultant upon the terms and
conditions hereinafter set forth. Xxxxxxxx acknowledges that the Board of
Directors of the Company has requested Xxxxxxxx to continue as
Chairman of the Board, a director and an employee of the Company until the
date which is three (3) days following the Special Shareholders' Meeting of
the Company to be scheduled to be held prior to the end of calendar year 1997
in connection with the sale of the Government Technology division, or
December 31, 1997 whichever is earlier, (the "Transition Period") and that
Xxxxxxxx has agreed to so serve and, accordingly, Xxxxxxxx will resign as
Chairman of the Board, a director and an employee of the Company effective as
of the expiration of the Transition Period. Xxxxxxxx will receive
compensation for services as Chairman of the Board and a director of the
Company during the Transition Period in accordance with the Company's
standard policies in effect, and Xxxxxxxx'x services in his capacity as
Chairman of the Board and a director of the Company during the Transition
Period will not relate to services covered by or compensated under this
Agreement.
2. CONSULTANT TERM. The term of Xxxxxxxx'x consultant relationship
pursuant to this Agreement will commence on the day following the Effective Date
and will terminate one year thereafter, unless sooner terminated hereunder (the
"Consulting Term").
3. CONSULTANT DUTIES. Xxxxxxxx shall, at the request of the Company,
make himself available to the Company during the Consulting Term to provide
consulting and advisory services in connection with the existing and prospective
business operations, products, customers, personnel and other business
activities of the Company upon the following terms:
(a) Xxxxxxxx shall provide only those consulting and advisory
services as requested in writing by the Chief Executive Officer of Base Ten and
Xxxxxxxx will report solely and directly to the Chief Executive Officer of Base
Ten;
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(b) Such services shall be performed at the Company's principal
office within the State of New Jersey, or at such other locations or offices as
may be mutually agreed upon by the parties from time to time. Unless expressly
agreed to by Xxxxxxxx, Xxxxxxxx shall not be required to perform any services
hereunder at a location or office beyond a 65 mile radius of the Company's
current principal office;
(c) In order to perform such services, Xxxxxxxx shall be entitled to
use and will have access to the Company's computers and will be provided office
space at the Company's principal office;
(d) Xxxxxxxx will be required to provide a minimum of 65 working days
of service during the Consulting Term (the "Minimum Working Days"). For
purposes of this Agreement, the term "working day" means any period of time, not
to exceed eight hours, between the hours of 8:00 a.m. and 8:00 p.m., Monday
through Friday. The first twenty (20) working days of the Minimum Working Days
will be served during the first 20 business days of the Consulting Term unless
interrupted by a holiday, period of illness or other incapacity of Xxxxxxxx, or
other interruption authorized by the Chief Executive Officer of Base Ten. The
remaining forty-five (45) working days of the Minimum Working Days will be
scheduled a minimum of seven calendar days in advance, unless otherwise agreed
to by Xxxxxxxx. Xxxxxxxx will be entitled to receive the Base Fee (as defined
in Section 4(a) of this Agreement) irrespective of whether the Company requests
Xxxxxxxx'x services for all or any of the Minimum Working Days;
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(e) The Company and Xxxxxxxx may mutually agree during the Consulting
Term for Xxxxxxxx to provide additional half or full days of service during the
Consulting Term if so requested in accordance with Section 3(a) of this
Agreement. For purposes of this Agreement, the term "half day" shall mean any
period of time, not to exceed four hours, between the hours of 8:00 a.m. and
8:00 p.m., Monday through Friday;
(f) Xxxxxxxx will not be required to render such services during
holidays, periods of illness or other incapacity, or during any period that
Xxxxxxxx shall have notified the Company is a Vacation Interval. For
purposes of this Agreement, the term "Vacation Interval" means a two (2) week
period of time during which Xxxxxxxx will not be required to provide any
services to the Company pursuant to the term of this Agreement. Xxxxxxxx
shall be entitled to designate three Vacation Intervals during the Consulting
Term, provided that Vacation Intervals shall be separated by a minimum of
four weeks, unless Xxxxxxxx in his discretion elects to provide services to
the Company during a Vacation Interval;
(g) Xxxxxxxx agrees to perform the consulting services under this
Agreement by using his best efforts and skill to promote the business and
interest of the Company.
4. COMPENSATION AND OTHER CONSIDERATION.
(a) The Company shall compensate Xxxxxxxx for his services under this
Agreement as follows:
(i) The Company will pay Xxxxxxxx a base consulting fee of
$100,000 (the "Base Fee") for the services described in Sections 3(a) through
3(d) above, which Base Fee
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shall be payable in equal quarterly installments, without deduction for federal,
state and local taxes.
(ii) The Company shall compensate Xxxxxxxx for additional
requested services as described in Section 3(e) above by payment of an
additional consulting fee of $800 for each half day and $1,600 for each full
working day (the "Additional Fee"). The Additional Fee shall be paid to
Xxxxxxxx at the same time as the Company makes payment of its regular employee
payroll following each half day served, without deduction for federal, state and
local taxes.
(iii) Xxxxxxxx shall be reimbursed for his reasonable out-of-
pocket expenses incurred in the performance of his duties hereunder for approved
business related travel and other expenses, provided that Xxxxxxxx submits to
the Company reasonably detailed receipts with respect thereto.
(b) In consideration of Xxxxxxxx'x willingness to enter into this
Agreement and to perform the obligations and provide the services referred to in
this Agreement, the Board of Directors has authorized by all appropriate
corporate action the continuance of the options held by Xxxxxxxx listed on
Exhibit A attached hereto for the remaining term of such options as indicated on
Exhibit A.
(c) In consideration of Xxxxxxxx'x separation from the Company as
well as his willingness to enter into this Agreement and to perform the
obligations and provide the services referred to in this Agreement, the Company
shall provide at the Company's expense health insurance and dental insurance to
Xxxxxxxx and his spouse for the remainder of each of their lives
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with substantially similar benefits as the health insurance and dental insurance
currently provided to Xxxxxxxx and his spouse, provided that, notwithstanding
the foregoing, the Company may change the benefits offered to Xxxxxxxx and his
spouse in the Company's discretion if such change (i) is effected for executive
officers of the Company, or (ii) is reasonably required by the Company and does
not materially change the benefits offered to Xxxxxxxx and his spouse, provided,
however, that a material change shall not include a change in the dentists,
physicians and providers available under a dental or medical reimbursement plan.
5. INDEMNIFICATION.
(a) The Company agrees that Xxxxxxxx'x existing rights, in his
capacity as an officer, director or employee of the Company, to indemnification
and advancement of expenses, as such rights currently exist under the Company's
certificate of incorporation, by-laws, resolutions, and any other agreement or
document binding on the Company, shall not be diminished or reduced in any
respect following the date of this Agreement, the intent being that Xxxxxxxx be
indemnified by the Company with respect to any "proceeding" (as that term is
defined in N.J.S.A. 14A:3-5(e)) involving Xxxxxxxx in his capacity as an
existing or former officer, director and employee of Base Ten or any of its
subsidiaries, affiliates or any other firms or entities in which Base Ten has an
investment or interest (including, but without limitation, uPACS, L.L.C.), to
the fullest extent permitted by law, and in connection with any such
"proceeding" to have his expenses in connection therewith advanced to the
fullest extent permitted by law.
(b) The Company will continue to maintain, for a period of at least
six (6) years following the date of this Agreement (and thereafter until the
Company's outside legal
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counsel shall advise Xxxxxxxx in writing that no such liability could reasonably
be expected or permitted to be claimed or assessed against Xxxxxxxx), the
Company's directors and officers liability insurance covering Xxxxxxxx in his
capacity as a former director, officer and employee of the Company, at the
highest coverage level then currently maintained for any of its then current
officers or directors.
(c) The Company agrees to indemnify Xxxxxxxx, to the fullest extent
permitted by law, with respect to any "proceeding" (as defined in N.J.S.A.
14A:35-(e)) involving Xxxxxxxx in his capacity as a consultant or agent of the
Company or otherwise in connection with any acts, omissions, circumstances or
events of or pertaining to Xxxxxxxx pursuant to his services under this
Agreement.
The provisions of this Section 5 are independent covenants of the Company
and are in consideration of Xxxxxxxx'x separation from the Company as well as
his willingness to enter into this Agreement and to perform the obligations and
provide the services referred to herein, and the Company's obligations under
this Section 5 shall survive and be applicable notwithstanding any other event
or circumstance affecting any of the Company's obligations under this Agreement.
6. PAYMENT OF PRIOR OBLIGATIONS. On the Effective Date, the Company
shall pay to Xxxxxxxx all salary and allowances then owed to Xxxxxxxx through
such date, including, without limitation all accrued vacation pay.
7. DEATH OR DISABILITY. Upon the death or disability of Xxxxxxxx during
the term of this Agreement, the obligation of the Company to make the payments
specified in
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Section 4(a) of this Agreement shall not cease and the Company shall remain
obligated to make such payments to Xxxxxxxx or his legal representatives.
8. RELATIONSHIP BETWEEN THE PARTIES.
(a) The relationship of Xxxxxxxx to the Company during the term of
this Agreement shall be solely that of independent contractor. Consequently,
Xxxxxxxx shall have no authority and shall not assume to act for or on behalf
of the Company without its express written approval.
(b) Xxxxxxxx is solely responsible for the payment of all taxes and
the filing of all tax returns and reports with respect to the amounts paid to
Xxxxxxxx under Section 4 hereof, and Xxxxxxxx agrees to indemnify the Company,
its officers and directors for any liability imposed on them or each of them
arising out of any failure by him to pay such taxes or to file any such returns
at any time.
9. CONFIDENTIAL INFORMATION AND DUTY OF NONDISCLOSURE. Xxxxxxxx
acknowledges and agrees that his prior employment with the Company and his
retention by the Company pursuant to this Agreement necessarily involves his
access to certain secrets and confidential information pertaining to the
business of the Company. Accordingly, Xxxxxxxx agrees that at all times during
the term of this Agreement and thereafter, he will not, directly or indirectly,
without the express authority of the Company, except as required by the
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performance of his services under this Agreement or unless directed by
applicable legal authority having jurisdiction over Xxxxxxxx, disclose to or
use for the benefit of any person, firm, corporation or other business
entity, or himself, any files, secrets, proprietary information or other
confidential information concerning the Company, including, without
limitation, any information concerning their past, present or prospective
clients, creditors, customers, operations, systems, software or methods.
Further, Xxxxxxxx agrees that he will not, directly or indirectly, remove or
retain, any figures, calculations, letters, papers, records, documents,
instruments, drawings, designs, programs or any copies thereof, or any
information of any type or description, however such information might be
obtained or recorded and on whatever medium such information may be
contained, arising out of or in any way relating to the business of the
Company or obtained as a result of or in connection with Xxxxxxxx'x prior
employment with the Company, or current retention under this Agreement,
heretofore, by the Company; provided that Xxxxxxxx may use any such
proprietary information (i) which has been disclosed to the public other than
by a violation of this Agreement by Xxxxxxxx and (ii) for purposes of
performing his services under this Agreement. Xxxxxxxx acknowledges that all
of the foregoing constitutes proprietary information, which is the exclusive
property of the Company. Notwithstanding the foregoing, upon leaving the
employ of the Company, Xxxxxxxx shall be permitted to remove originals or
copies, as applicable, of all records, papers and documents kept or made by
Xxxxxxxx relating to personal matters, which records, papers and documents
shall be specifically excluded from the restrictions contained in this
Section 9.
10. COVENANT NOT TO COMPETE.
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(a) During the term of this Agreement set forth in Section 2,
Xxxxxxxx shall not, directly or indirectly, acting as employee, investor,
officer, partner, principal or otherwise of any corporation or other entity,
within the United States of America, Canada or any of their territories,
possessions or protectorates, or in any country which is in the European
Common Market, engage in any activity involving products or services or both
products and services similar to those products and services of the Company,
as such products and services exist on the date hereof or during the term of
this Agreement, other than (i) in performing his services under this
Agreement, and (ii) in acting as employee, investor, officer, partner,
principal or otherwise of any corporation or other entity, within the United
States of America, Canada or any of their territories, possessions or
protectorates, or in any country which is in the European Common Market,
which corporation or entity (or any successor thereto) acquires all or a
portion of the Company's existing business.
(b) During the term of this Agreement set forth in Section 2 and for
one year thereafter, Xxxxxxxx shall not, directly or indirectly, acting as an
employee, owner, partner, investor, officer, director, independent contractor,
supplier, consultant, principal or otherwise of any corporation or other entity:
(i) solicit, other than in connection with a corporation or
entity referred in Section 10(a)(ii) above, for the purpose of providing by
sale or otherwise any product which is similar to or competitive with any
product sold or considered for sale by the Company, any facility of a
corporation or business entity (or any individual who exercises management or
administrative control over such facility or entity) which on the date hereof or
at any time during
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the 12 months prior to the date hereof, or which Xxxxxxxx knows or has reason to
believe (at the time of such contact or solicitation) has during the 12 months
after the date hereof proposed to purchase, purchased or contracted with the
Company for the purchase of any service or product provided by the Company; or
(ii) disclose to any person, firm, corporation or other entity,
any trade, technical, operational, management or other secrets of the Company
except to the extent required or permitted under Section 9 hereof;
Notwithstanding the foregoing provision of this Section 10(b), Xxxxxxxx may act
in any capacity (A) to the extent expressly consented to or approved of in
writing by the Company, (B) by participation in any investment or mutual fund
over which Xxxxxxxx has no authority to make investment decisions with respect
to the securities or other investments made by such investment or mutual fund,
(C) as a vendor to the Company, (D) on behalf of a newly formed company which is
not a successor to any prior competitor of the Company and which is not a
competitor to the Company, or (E) arising solely out of Xxxxxxxx being the owner
of 5% or less of the securities of any publicly held corporation.
(c) The parties hereto agree that in the event that either the length
of time or the geographical areas set forth in Sections 10(a) or 10(b) above are
deemed too restrictive by any court of applicable jurisdiction, the court may
reduce such restrictions to those which it deems reasonable under the
circumstances.
(d) Xxxxxxxx agrees and acknowledges that the Company does not have
an adequate remedy at law for the breach or threatened breach by Xxxxxxxx of the
covenants under
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this Section 10 and agrees that the Company shall be entitled to apply for
injunctive relief to restrain Xxxxxxxx from such breach or threatened breach in
addition to any other remedies which might be available to the Company at law or
in equity.
(e) The obligations expressed in Sections 9 and 10 hereof shall be in
addition to any other obligations imposed by law upon Xxxxxxxx with respect to
the Company.
11. MUTUAL RELEASES.
(a) Except for those rights of Xxxxxxxx set forth in this Agreement,
Xxxxxxxx'x rights of indemnification under law, the certificate of incorporation
and/or by-laws and/or resolutions or other agreements or documents of or binding
on the Company, insurance policies, and stock options remaining unexercised,
Xxxxxxxx hereby releases and forever discharges the Company, including any of
its successors or assigns, and each and every one of its present and former
directors, officers, agents, servants, employees, representatives, heirs,
executors, administrators and shareholders, agents and employees from all
actions, causes of action, suits, debts, dues, amounts, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, executions, rights under
any employment agreement or other agreement whatsoever in law or in equity,
which against the Company, Xxxxxxxx, Xxxxxxxx'x heirs, executors, administrators
and assigns ever had, now have or hereinafter can, shall or may have for, upon
or by reason of any matter, cause or thing whatsoever, including but not limited
to, any and all claims that Xxxxxxxx has or may have concerning his relationship
and/or his resignation as an officer, director and employee of the Company and
any claims for compensatory or punitive damages, declaratory or injunctive
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relief, reinstatement and attorney's fees or costs of litigation, provided,
however, that notwithstanding the foregoing, this release shall not apply to any
rights or obligations between CKR Partners, L.L.C. (or any successor entity or
individual) and the Company relating to the ownership of the building which is
the principal headquarters of the Company, including without limitation the
purchase options contained in the lease for such building.
(b) The Company, on behalf of itself and each of its subsidiaries or
affiliates or any other firms or entities in which Base Ten has an investment or
interest (including, but without limitation, uPACS, L.L.C.), hereby releases and
forever discharges Xxxxxxxx and his representatives, heirs, executors, and
administrators from all actions, causes of action, suits, debts, dues, amounts,
accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
executions, rights under any employment agreement or other agreement whatsoever
in law or in equity, which against Xxxxxxxx, the Company or any of its
subsidiaries or affiliates or any other firms or entities in which Base Ten has
an investment or interest (but, without limitation, uPACS, L.L.C.), and each of
their respective officers, partners, agents or employees and assigns ever had,
now have or hereinafter can, shall or may have for, upon or by reason of any
matter, cause or thing whatsoever, including but not limited to, any and all
claims that any such entity or individual may have concerning its or his
relationship with Xxxxxxxx in his capacity as an officer, director or employee
of the Company or any of its subsidiaries or affiliates or any other firms or
entities in which Base Ten has an investment or interest (including, but without
limitation, uPACS, L.L.C.), including any and all claims for compensatory or
punitive damages, declaratory or injunctive relief, reinstatement and attorney's
fees or costs of litigation, provided, however,
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this release shall not apply to any rights or obligations between CKR Partners,
L.L.C. (or any successor entity or individual) and the Company relating to the
ownership of the building which is the principal headquarters of the Company,
including without limitation the purchase options contained in the lease for
such building and the rights of the Company with respect to this Agreement.
12. TERMINATION. If at any time during the term of this Agreement set
forth in Section 2, Xxxxxxxx is in default in complying with the provisions of
this Agreement, the Company shall be entitled to terminate this Agreement after
30 days written notice to Xxxxxxxx and cease to provide Xxxxxxxx any further
compensation set forth in Section 4 hereof, provided Xxxxxxxx has not cured such
default within such 30 day period. Anything to contrary contained in this
Agreement notwithstanding, the provisions of Sections 5, 9, 10 and 11 of this
Agreement shall survive any expiration or termination of this Agreement for any
reason whatsoever.
13. NOTICES. For the purposes of this Agreement, notices and all other
communication provided for in this Agreement shall be effective and shall be
deemed to have been duly given if the same is in writing and when delivered or
mailed by first class mail, postage prepaid, addressed as follows:
If to the Company: Base Ten Systems, Inc.
Xxx Xxxxxxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attention: Chief Executive Officer
If to Xxxxxxxx: Xxxxx X. Xxxxxxxx
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
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14. ASSIGNMENT/BINDING EFFECT. The duties and obligations of Xxxxxxxx
hereunder are not assignable by him without the prior written consent of the
Company. The Company may assign its rights hereunder to any affiliated or
successor corporation, including a successor through the purchase of all or
substantially all of the Company's assets. This Agreement and the rights
hereunder shall be binding upon and inure to the benefit of and be enforceable
by (i) Xxxxxxxx'x personal or legal representatives, executors, administrators,
distributees, devisees and legatees, and (ii) the successors and assigns of the
Company.
15. INTEGRATION. This Agreement represents the entire understanding of
the parties with respect to the subject matter hereof. This Agreement
supersedes all other agreements, contracts, understandings and other
arrangements, written or oral, between the parties, all of which are hereby
terminated and shall be of no further force or effect, including without
limitation, any employment contracts, agreements or understandings in effect as
of the date hereof.
16. SEVERABILITY. In the event that one or more of the provisions of this
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
17. MISCELLANEOUS. No provision of this Agreement may be modified, waived
or discharged unless such modification, waiver or discharge is agreed to in
writing signed by Xxxxxxxx and such officer of the Company as may be
specifically designated by the Company.
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No waiver by either party hereto at any time of any breach by the other party
hereto of, or in compliance with, any condition or provision of this Agreement
to be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or any prior or subsequent time.
No representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of New
Jersey without regard to conflict of law principles. This Agreement may be
executed in counterparts, each of which shall be deemed a duplicate original,
all of which shall be deemed to be one in the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first set forth above.
BASE TEN SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President
/s/ Xxxxx X. Xxxxxxxx
-------------------------------------
XXXXX X. XXXXXXXX
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Exhibit A
List of Options
ISSUE DATE EXERCISE DATE EXPIRATION DATE EXERCISE PRICE AWARDED OPTIONS
6/1/93 9/23/94 6/1/99 8.0625 140,000
11/24/93 9/23/94 11/23/03 8.625 15,000
6/13/94 12/13/94 6/12/04 8.37 6,000
4/18/96 3/20/97 4/17/06 10.25 50,000
