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Exhibit 10.14
EMPLOYMENT AGREEMENT
This Agreement made and entered into as of the 1st day of January,
1999, by and between INTERLIANT, INC., a Delaware corporation, having a place of
business at 000 Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000 ("Employer"), and, Xxxxx
Xxxxxxxx, having an address at 000 Xxxxxx Xxxxxx, Xxx 0X, Xxxxxx, XX 00000
("Employee").
WITNESSETH:
WHEREAS, Employer is engaged in the Internet Web hosting and related
services business; and
WHEREAS, Employer desires to employ Employee as Senior Vice President,
Chief Operating Officer Web Hosting of Employer, and Employee desires to be so
employed by Employer, all pursuant to the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants herein contained, it is agreed as follows:
1. EMPLOYMENT: DUTIES
(a) Employer hereby agrees to employ Employee, and Employee
hereby agrees to accept employment during the term hereof as Senior Vice
President, Chief Operating Officer Web Hosting of Employer, and shall perform
such services as are customarily performed by persons holding such offices and
shall be subject at all times to the direction of the Board of Directors of
Employer. Nothing herein contained shall be construed as, including, but not
limited to (i) preventing Employee from devoting a portion of his business time
to other business ventures of Employee provided such business venture does not
compete with Employer and does not distract from Employee's commitment to devote
substantially all of his time performing his duties hereunder, (ii) preventing
Employee from investing his personal assets in any business provided such
business does not compete with Employer and does not distract from Employee's
commitment to devote substantially all of his time performing his duties
hereunder, or (iii) preventing Employee from purchasing securities in any
corporation whose securities are regularly publicly traded, if such purchases
shall not result in his owning beneficially at any time 5% or more of the equity
securities of any corporation engaged in a business which is competitive to that
of Employer.
2. TERM
Employee's employment hereunder shall be for a term commencing
January 1, 1999 and ending on December 31, 1999. The Agreement shall be
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automatically extended from year to year thereafter unless either party gives
not less than three (3) months prior written notice to the other that such party
elects to have the Agreement terminated effective at the end of the initial or
then current renewal term.
3. COMPENSATION
(a) As compensation for the performance of his duties on
behalf of Employer, Employer shall pay Employee a salary at the rate of One
Hundred Eighty Thousand Dollars ($180,000.00) per annum, payable in installments
in accordance with the usual practice of the Employer.
(b) Employer shall reimburse Employee for the expenses
incurred by Employee in connection with his duties hereunder upon presentation
by Employee of the details of vouchers for such expenses in accordance with
customary Employer practice.
(c) Employee shall be entitled to participate in all
retirement, life insurance, medical insurance, disability insurance, vacation,
savings and other employee benefit plans generally available to the senior
officers of the Company, so long as such benefits comply with applicable law
(including without limitation the Internal Revenue Code of 1986, as amended, and
ERISA).
4. NON-COMPETITION
(a) During the term of this Agreement and for a period of
twelve (12) months from the date of termination of his employment hereunder for
whatever reason, Employee agrees that he will not solicit any customers who are
presently or may hereafter become customers of Employer unless such solicitation
is entirely unrelated to Employer's business, or compete in any way with
Employer alone or together with others in a business in which Employer is
engaged at the time of termination of employment.
(b) Subsequent to the expiration or termination of this
Agreement, Employee will not interfere with or disrupt or attempt to disrupt
Employer's business relationship with its customers or suppliers or, for a
period of twelve (12) months from the date of termination of his employment
hereunder, solicit the employees of Employer.
(c) During the term of this Agreement and for a period of
twelve (12) months from the date of termination of his employment hereunder for
whatever reason, Employee will not disclose or use or enable anyone else to use
any information or data which may be obtained by him or available to him during
the term of employment except if such information is otherwise readily publicly
available or is required to be disclosed pursuant to a court order.
(d) In the event that Employee breaches any provisions of this
paragraph or there is a threatened breach, then, in addition to any other rights
which
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Employer may have, Employer shall be entitled to injunctive relief to enforce
the restrictions contained herein. In the event that an actual proceeding is
brought in equity to enforce the provisions of this paragraph, Employee shall
not urge as a defense that there is an adequate remedy at law nor shall Employer
be prevented from seeking any other remedies which may be available.
(e) The existence of any claim or cause of action by Employee
against Employer, whether predicated upon this Agreement or otherwise, shall not
constitute a defense to the enforcement by Employer of the foregoing restrictive
covenants but shall be litigated separately.
5. TERMINATION
(a) Anything to the contrary notwithstanding, this Agreement
shall terminate 30 days after the Employee's (i) death or (ii) disability for a
period of not less than twenty-six consecutive weeks; provided, however, that
the provisions of Section 6 hereof shall remain in full force and effect through
the end of the term hereof.
(b) Employee's employment hereunder may also be terminated by
the Employer before the expiration of the term hereof only for cause as herein
defined. "Cause" shall mean only one or both of the following occurrences:
(i) The Employee's conviction of a felony by a court
of competent jurisdiction (which conviction, through lapse of time or
otherwise, is not subject to appeal); or
(ii) The Employee's commission of an act of fraud or
embezzlement upon the Employer.
6. SEVERANCE
In the event of termination of employment of Employee by
Employer before the expiration of the term hereof, except when such termination
is in accordance with the provisions of paragraph 5(a) or 5(b) hereof, Employer
will provide Employee with severance pay in an amount equal to Employee's base
annual salary through the end of the term hereof, which shall be payable in a
lump sum, discounted based on the prime rate of Chase Bank then in effect, which
lump sum shall be payable within 30 days of the date of termination. Employer
shall also continue to provide to Employee the retirement benefits, life
insurance, medical insurance and disability insurance pursuant to Section 3(d)
through the end of the term hereof.
In the event of termination of employment of Employee before
the expiration of the term hereof pursuant to the provisions of paragraph 5(a)
hereof,
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Employer will: (i) provide Employee (or Employee's estate) with severance pay in
an amount equal to one year's base annual salary, which shall be payable in a
lump sum, discounted based on the prime rate of Chase Bank then in effect, which
lump sum shall be payable within 30 days of the date of termination; (ii)
continue to provide to Employee the retirement benefits, life insurance, medical
insurance and disability insurance pursuant to Section 3(d) through the end of
the term hereof; and (iii) continue to provide Employee's spouse and minor
children with medical benefits pursuant to Section 3(d) through the end of the
term hereof.
7. NOTICES
All notices hereunder shall be in writing and shall be
delivered in person or given by registered or certified mail, postage prepaid,
and sent to the parties at the respective addresses above set forth. Either
party may designate any other address to which notice shall be given, by giving
notice to the other of such change of address in the manner herein provided.
8. SEVERABILITY OF PROVISIONS
If any provision of this Agreement shall be declared by a
court of competent jurisdiction to be invalid, illegal or incapable of being
enforced in whole or in part, the remaining conditions and provisions or
portions thereof shall nevertheless remain in full force and effect and
enforceable to the extent they are valid, legal and enforceable, and no
provision shall be deemed dependent upon any other covenant or provision unless
so expressed herein.
9. GOVERNING LAW
This Agreement shall be construed and governed by the laws of
the State of New York.
10. NON-WAIVER
The failure of either party to insist upon the strict performance of
any term or condition in this Agreement shall not be considered a waiver or
relinquishment of future compliance therewith.
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11. ENTIRE AGREEMENT; MODIFICATION
This Agreement contains the entire agreement between the
parties relating to the subject matter hereof. No modification of this Agreement
shall be valid unless it is made in writing and signed by the parties hereto.
12. NON-ASSIGNMENT; SUCCESSORS
Neither party hereto may assign his or its rights or delegate
his or its duties under this Agreement without the 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 Employer upon
any sale of all or substantially all of the Employer's assets, or upon any
merger, consolidation or reorganization of the Employer with or into any other
corporation, all as though such successors and assigns of the Employer and their
respective successors and assigns were the Employer; and (ii) this Agreement
shall insure to the benefit of and be binding upon the heirs, assigns or
designees of the Employee to the extent of any payments due to them hereunder.
As used in this Agreement, the term "Employer" shall be deemed to refer to any
such successor or assign of the Employer referred to in the preceding sentence.
13. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the day and year first above written.
INTERLIANT, INC.,
Employer
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx,
Co-Chairman
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
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