Exhibit 10.10
FORM OF
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is made this 15th day of June, 1998, between
Condor Technology Solutions, Inc., a Delaware corporation (the "Company"), and
Xxxx X. XxXxxx (the "Executive").
WHEREAS, the parties hereto wish to enter into an employment agreement
to employ the Executive as an officer of the Company serving as Vice President,
General Counsel and Secretary, and to set forth certain additional agreements
between the Executive and the Company.
NOW, THEREFORE, in consideration of the mutual covenants and
representations contained herein, the parties hereto agree as follows:
1. TERM
The Company will employ the Executive, and the Executive will serve the
Company, under the terms of this Agreement for an initial term of one (1) year,
commencing on the date hereof. Notwithstanding the foregoing, the Executive's
employment hereunder may be earlier terminated, as provided in Section 4 hereof.
The term of this Agreement, as in effect from time to time in accordance with
the foregoing, shall be referred to herein as the "Term." The period of time
between the commencement and the termination of the Executive's employment
hereunder shall be referred to herein as the "Employment Period."
2. EMPLOYMENT
(a) Position and Reporting. The Company hereby employs the Executive
for the Employment Period as an officer, Vice President, General Counsel and
Secretary of the Company on the terms and conditions set forth in this
Agreement.
(b) Authority and Duties. The Executive shall exercise such authority,
perform such executive duties and functions and discharge such responsibilities
as are reasonably associated with the Executive's position, commensurate with
the authority vested in the Executive's position, pursuant to this Agreement and
consistent with the By-Laws of the Company. During the Employment Period, the
Executive shall devote his full business time, skill and efforts to the business
of the Company. Notwithstanding the foregoing, the Executive may (i) make and
manage passive personal business investments of his choice (in the case of
publicly-held corporations, not to exceed five percent (5%) of the outstanding
voting stock) and serve in any capacity with any civic, educational or
charitable organization, or any trade association, without seeking or obtaining
approval by the Board of Directors of the Company (the "Board"), provided such
activities and service do not materially interfere or conflict with the
performance of his duties hereunder; and (ii) with the approval of the Board,
which shall not be unreasonably withheld, serve on the boards of directors of
other corporations.
3. COMPENSATION AND BENEFITS
(a) Salary. During the Employment Period, the Company shall pay to the
Executive, as compensation for the performance of his duties and obligations
under this Agreement, a base salary at
the rate of $140,000 per annum, payable in arrears not less frequently than
monthly in accordance with the normal payroll practices of the Company. Such
base salary shall be subject to review each year for possible increase by the
Board, but shall in no event be decreased from its then-existing level during
the Employment Period.
(b) Annual Bonus. During the Employment Period, the Executive shall
have the opportunity to earn an annual bonus in accordance with a Company annual
bonus program established by the Board for senior executives of the Company and
its subsidiaries of up to 50% of the Executive's salary. The payment of any
annual bonus under any such program shall be contingent upon the achievement of
certain corporate and/or individual performance goals established by the Board
in its discretion.
(c) Stock Options. The Company has established a 1997 Long-Term
Incentive Plan (the "Plan") which provides, among other things, for the issuance
from time to time to certain officers, directors and other employees of Condor
and its subsidiaries of options to purchase shares of the Company's Common
Stock. The Executive shall be granted non-qualified stock options to purchase
30,000 shares of the Common Stock (the "Initial Grant"), exercisable at the
closing price of the Company's Common Stock on the Nasdaq National Market on the
date of grant, that shall vest and become exercisable in three equal annual
installments of 10,000 shares on each of the first, second and third
anniversaries of date of grant.
(d) Other Benefits. During the Employment Period, the Executive shall
be entitled to participate in all of the employee benefit plans, programs and
arrangements in effect during the Employment Period that are generally available
to senior executives of the Company, subject to and on a basis consistent with
the terms, conditions and overall administration of such plans, programs and
arrangements. In addition, during the Employment Period, the Executive shall be
entitled to fringe benefits and perquisites comparable to those of other senior
executives of the Company.
(e) Business Expenses. During the Employment Period, the Company shall
reimburse the Executive for all documented reasonable business expenses incurred
by the Executive in the performance of his duties under this Agreement, in
accordance with the Company's policies.
(f) Indemnification. During the Employment Period and thereafter, the
Company shall indemnify the Executive to the fullest extent permitted by
applicable law, and the Executive shall be entitled to the protection of any
insurance policies the Company may elect to maintain generally for the benefit
of the directors and officers of the Company, with respect to all costs, charges
and expenses, including attorneys' fees, whatsoever incurred or sustained by the
Executive in connection with any action, suit or proceeding (other than any
action, suit or proceeding brought by or in the name of the Company against the
Executive) to which he may be made party by reason of being or having been a
director, officer or employee of the Company or his serving or having served any
other enterprise as a director, officer or employee at the request of the
Company.
4. TERMINATION OF EMPLOYMENT
(a) Termination for Cause. The Company may terminate the Executive's
employment hereunder with or without cause, subject to the obligations of the
Company under Section 5 hereof in the event of the termination of the Executive
without cause. For purposes of this Agreement, the Company shall have "cause" to
terminate the Executive's employment hereunder if such termination shall be the
result of:
(i) willful fraud or dishonesty in connection with the
Executive's performance hereunder that results in
material harm to the Company;
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(ii) the failure by the Executive to substantially perform
his duties hereunder that results in material harm to
the Company; or
(iii) the conviction for, or plea of nolo contendere to, a
charge of commission of a felony or a misdemeanor
involving theft, deception or moral turpitude.
(b) Termination for Good Reason. The Executive shall have the right at
any time to terminate his employment agreement with the Company at any time and
for any good reason. For purposes of this Agreement, and subject to the
Company's opportunity to cure as provided in Section 4(c) hereof, the Executive
shall have "good reason" to terminate his employment hereunder if such
termination shall be the result of:
(i) a material breach by the Company of the compensation
and benefits provisios set forth in Section 3 hereof;
(i) a notice of termination by the Executive under
Section 4(c) hereof within 12 months following the
occurrence of a Change in Control (as defined in
Section 4(e) hereof); or
(iii) a material breach by the Company of any other term of
this Agreement.
(c) Notice and Opportunity to Cure. Notwithstanding the foregoing, it
shall be a condition precedent to the Company's right to terminate the
Executive's employment for "cause" and the Executive's right to terminate his
employment for "good reason" that (1) the party seeking the termination shall
first have given the other party written notice stating with specificity the
reason for the termination ("breach"); (2) if the Executive is terminated for
"cause," the Company provides the Executive an opportunity to appear before the
Board to answer such grounds for termination; and (3) if such breach is
susceptible of cure or remedy, a period of 30 days from and after the giving of
such notice shall elapsed without the breaching party having effectively cured
or remedied such breach during such 30-day period, unless such breach cannot be
cured or remedied within 30 days, in which case the period for remedy or cure
shall be extended for a reasonable time (not to exceed an additional 30 days),
provided the breaching party has made and continues to make a diligent effort to
effect such remedy or cure.
(d) Termination Upon Death or Permanent and Total Disability. The
Employment Period shall be terminated by the death of the Executive. The
Employment Period may be terminated by the Company if the Executive shall be
rendered incapable of performing his duties to the Company by reason of a
"disability," defined as either (i) any medically determined physical or mental
impairment that can be expected to result in death or that can be expected to
last for a period of six or more consecutive months from the first date of the
Executive's absence, or (ii) due to a total and permanent "disability" that can
be expected to last for a period of six or more consecutive months from the
first date of the Executive's absence, as such term is defined in the Company's
long term disability insurance policy or contract as may be in effect from time
to time for the benefit of employees of the Company (either, a "Disability"). If
the Employment Period is terminated by reason of the Disability of the
Executive, the Company shall give 30 days' advance written notice to that effect
to the Executive. If the existence of a Disability hereunder is in dispute, it
shall be resolved by two physicians, one appointed by the Executive and one
appointed by the Company. If the two physicians so selected cannot agree as to
whether or not the Executive has a Disability, the two physicians so selected
shall designate a third physician and a majority of the three physicians so
selected shall determine whether or not the Executive has a Disability.
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(e) Definition of Change in Control. A "Change in Control" shall be
deemed to have taken place if:
(i) there shall be consummated any consolidation or
merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to
which shares of the Company's capital stock are
converted into cash, securities or other property
other than a consolidation or merger of the Company
in which the holders of the Company's voting stock of
the surviving corporation, or any sale, lease,
exchange or other transfer (in one transaction or a
series of transactions contemplated or arranged by
any party as a single plan) of all or substantially
all of the assets of the Company; or
(ii) any person (as such term is used in Sections 13(d)
and 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) shall after the date
hereof become the beneficial owner (as defined in
Rules 13d-3 and 13d-5 under the Exchange At),
directly or indirectly, of securities of the Company
representing 35% or more of the voting power of all
then outstanding securities of the Company having the
right under ordinary circumstances to vote in an
election of the Board (including, without limitation,
any securities of the Company that any such person
has the right to acquire pursuant to any agreement,
or upon exercise of conversion rights, warrants or
options, or otherwise, which shall be deemed
beneficially owned by such person); or
(iii) individuals who at the date hereof constitute the
entire Board and any new directors whose election by
the Board, or whose nomination for election by the
Company's stockholders, shall have been approved by a
vote of at least a majority of the directors then in
office who either were directors at the date hereof
or whose election or nomination for election shall
have been so approved (the "Continuing Directors")
shall cease for any reason to constitute a majority
of the members of the Board.
5. CONSEQUENCES OF TERMINATION
(a) Termination Without Cause. In the event of termination of the
Executive's employment hereunder by the Company without "cause" (other than upon
death or Disability) or by the Executive for "good reason" (defined in Section 4
hereof), the Executive shall be entitled to the following severance pay and
benefits:
(i) Severance Pay - severance payments in the form of
continuation of the Executive's base salary as in effect immediately prior to
such termination over the longer of: (A) the then-remaining Term hereof; or (B)
twelve (12) months (the "Severance Period").
(ii) Benefits Continuation - continuation for the Severance
Period of coverage under the group medical care, disability and life insurance
benefit plans or arrangements in which the Executive is participating at the
time of termination; provided, however, that the Company's obligation to provide
or cause to be provided such coverages shall be terminated if the Executive
obtains comparable substitute coverage from another employer at any time during
the Severance Period. The Executive shall be entitled, at the expiration of the
Severance Period, to elect continued medical coverage in accordance
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with section 4980B of the Internal Revenue Code of 1986, as amended (or any
successor provision thereto); and
(iii) Stock Options - all options to purchase shares of the
Company's Common Stock held by the Executive immediately prior to termination of
employment that are then vested and exercisable shall, subject to the terms of
the Plan, remain exercisable for the duration of the Severance Period.
(b) Other Terminations. In the event of termination of the Executive's
employment hereunder for any reason other than those specified in Section 5(a)
hereof, including but not limited to Executive's voluntary termination, the
Executive shall not be entitled to any severance pay, benefits continuation or
stock option rights contemplated by the foregoing, except as may otherwise be
provided under the applicable benefit plans or award agreements relating to the
Executive.
(c) Accrued Rights. Notwithstanding the foregoing provisions of this
Section 5, in the event of termination of the Executive's employment hereunder
for any reason, the Executive shall be entitled to payment of any unpaid portion
of his base salary through the effective date of termination, and payment of any
accrued but unpaid rights solely in accordance with the terms of any incentive
bonus, stock option or employee benefit plan or program of the Company.
6. CONFIDENTIALITY
The Executive agrees that he will not at any time during the Term
hereof or at any time thereafter for any reason, in any fashion, form or manner,
either directly or indirectly, divulge, disclose or communicate to any person,
firm, corporation or other business entity, in any manner whatsoever, any
confidential information or trade secrets concerning the business of the Company
or any of its subsidiaries, including, without limiting the generality of the
foregoing, the techniques, methods or systems of operation or management, or any
information regarding financial matters, plans or other material data. The
provisions of this Section 6 shall not apply to (i) information that is public
knowledge other than as a result of disclosure by Executive in breach of this
Section 6; (ii) information disseminated by the Company or any of its
subsidiaries to third parties in the ordinary course of business; (iii)
information lawfully received by the Executive from a third party who, based
upon inquiry by the Executive, is not bound by a confidential relationship to
the Company or any of its subsidiaries; or (iv) information disclosed under a
requirement of law or as directed by applicable legal authority having
jurisdiction over the Executive.
7. INVENTIONS
The Executive is hereby retained in a capacity such that the
Executive's responsibilities include the making of technical and managerial
contributions of value to the Company. The Executive hereby assigns to the
Company all right, title and interest in such contributions and inventions made
or conceived by the Executive alone or jointly with others during the Employment
Period that relate to the business of the Company, or any of its other
subsidiaries. This assignment shall include (a) the right to file and prosecute
patent applications on such inventions in any and all countries, (b) the patent
applications filed and patents issuing thereon, and (c) the right to obtain
copyright, trademark or trade name protection for any such work product. The
Executive shall promptly and fully disclose all such contributions and
inventions to the Company and assist the Company in obtaining and protecting the
rights therein (including patents thereon) in any and all countries; provided,
however, that said contributions and inventions will be the property of the
Company, whether or not patented or registered for copyright, trademark or trade
name protection, as the case may be. The Executive hereby agrees to execute any
documentation requested by the Company to be so executed if such request is made
in order
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to carry out the purpose and terms of this paragraph. Inventions conceived by
the Executive that are not related to the business of the Company or any of its
subsidiaries will remain the property of the Executive.
8. NON-COMPETITION
The Executive agrees that he shall not during the Employment Period and
for a period of one (1) year from the date of the termination of Executive's
employment by the Company, directly or indirectly, alone or as principal,
partner, joint venturer, officer, director, employee, consultant, agent,
independent contractor or stockholder (other than as provided below) of any
company or business, engage in any "Competitive Business" within the United
States. For purposes of the foregoing, the term "Competitive Business" shall
mean any business involved in providing information technology solutions,
including, but not limited to, desktop services, software development, systems
design and integration, large scale survey research, recruiting and
comprehensive marketing and sales, which is in direct competition with the
Company or any of its subsidiaries in any community in which the Company or any
of its subsidiaries are doing business. Notwithstanding the foregoing, the
Executive shall not be prohibited during the non-competition period applicable
above from acting as a passive investor where he owns not more than five percent
(5%) of the issued and outstanding capital stock of any publicly-held company.
9. NON-SOLICITATION OF EMPLOYEES
The Executive agrees that he shall not during the Employment Period and
for a period of one (1) year from the date of the termination of the Executive's
employment by the Company, directly or indirectly, alone or as principal,
partner, joint venturer, officer, director, employee, consultant, agent,
independent contractor or stockholder, or in any other capacity whatsoever,
employ, retain, or enter into any employment, agency, consulting or other
similar arrangement with any person who, within the twelve-month period prior to
the termination of the Executive's employment by the Company, was an employee of
the Company or of any of its subsidiaries, or, induce or attempt to induce such
person to terminate his employment with the Company or such subsidiary.
10. NON-SOLICITATION OF CLIENTS OR CUSTOMERS
The Executive agrees that he shall not during the Employment Period and
for a period of one (1) year from the date of the termination of the Executive's
employment by the Company, directly or indirectly, alone or as principal,
partner, joint venturer, officer, director, employee, consultant, agent,
independent contractor or stockholder, or in any other capacity whatsoever,
directly or indirectly, for his or her own account, or for the account of
others, solicit orders for services of a kind or nature like or similar to
services performed by the Company or any of its subsidiaries as of the date of
the termination of the Executive's employment by the Company, from any party
that was a customer or client of the Company or such subsidiary, or which the
Company or any of its subsidiaries was soliciting to be a customer or client,
during the twelve (12) month period preceding the termination of the Executive's
employment.
11. BREACH OF RESTRICTIVE COVENANTS
The parties agree that a breach or violation of Section 6, 7, 8, 9 or
10 hereof will result in immediate and irreparable injury and harm to the
innocent party, which party shall have, in addition to any and all remedies of
law and other consequences under this Agreement, the right to an injunction,
specific performance or other equitable relief to prevent the violation of the
obligation hereunder.
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12. NOTICES
For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or (unless otherwise specified)
mailed by United States certified or registered mail, return receipt requested,
postage prepaid, addressed as follows:
(a) If to the Company, to:
CONDOR TECHNOLOGY SOLUTIONS, INC.
Xxxxxxxxx Xxxxxx Xxxxx
000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
with a copy to:
Xxxxxxx X. Xxxxxxx, Xx., Esquire
Xxxxxxxxx, Xxxxxx & Xxxxxxx L.L.P.
Xxxxx Xxxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
(b) If to the Executive, to:
Xxxx X. XxXxxx
00000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
or to such other address as a party hereto shall designate to the other party by
like notice, provided that notice of a change of address shall be effective only
upon receipt thereof.
13. ARBITRATION: LEGAL FEES
Except as provided in Section 11 hereof, any dispute or controversy
arising under or in connection with this Agreement shall be settled exclusively
by arbitration in Annapolis, Maryland in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. The Company shall reimburse
the Executive for all reasonable legal fees and costs and other fees and
expenses that the Executive may incur in respect of any dispute or controversy
arising against the Company under or in connection with this Agreement; provide,
however, that the Company shall not reimburse any such fees, costs and expenses
if the fact finder determines that an action brought by the Executive was
substantially without merit or the Executive is otherwise unsuccessful in such
an action.
14. WAIVER OF BREACH
Any waiver of any breach of this Agreement shall not be construed to be
a continuing waiver or consent to any subsequent breach on the part of either
the Executive or of the Company.
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15. NON-ASSIGNMENT: SUCCESSORS
Neither part hereto may assign his or its rights or delegate his or its
duties under this Agreement without prior written consent of the other party;
provided, however, that: (i) this Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the Company upon any sale of all or
substantially all of the Company's assets, or upon any merger, consolidation or
reorganization of the Company with or into any other corporation, all as though
such successors and assigns of the Company and their respective successors and
assigns were the Company; and (ii) this Agreement shall inure to the benefit of
and be binding upon the heirs, assigns or designees of the Executive to the
extent of any payments due to the Executive hereunder. As used in this
Agreement, the term "Company" shall be deemed to refer to any such successor or
assign of the Company referred to in the preceding sentence.
16. WITHHOLDING OF TAXES
All payments required to be made by the Company to the Executive under
this Agreement shall be subject to the withholding of such amounts, if any,
relating to tax, and other payroll deductions as the Company may reasonably
determine it should withhold pursuant to any applicable law or regulation.
17. SEVERABILITY
To the extent any provision of this Agreement or portion thereof shall
be invalid or unenforceable, it shall be considered deleted therefrom and the
remainder of such provision and of this Agreement shall be unaffected and shall
continue in full force and effect.
18. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
19. GOVERNING LAW
This Agreement shall be construed, interpreted and enforced in
accordance with the laws of the State of Maryland.
20. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement by the Company and the
Executive with respect to the subject matter hereof and supersedes any and all
prior agreements or understandings between the Executive and the Company with
respect to the subject matter hereof, whether written or oral. This Agreement
may be amended or modified only by a written instrument executed by the
Executive and the Company.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
CONDOR TECHNOLOGY SOLUTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
Chief Financial Officer
THE EXECUTIVE
By: /s/ Xxxx X. XxXxxx
-----------------------------------------
Name: Xxxx X. XxXxxx
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