EXHIBIT 10.14
COMMAND SYSTEMS
EMPLOYMENT AGREEMENT
Employment Agreement dated as of January 1, 1998 by and between Xxxxxxx X.
Xxxxxxx residing at 000 Xxxx Xxxxxxx Xxxx, Xxxxxxxxxxx, XX 00000 ("Employee"),
and Command Systems, Inc., a Delaware corporation with its principal office
located at Pond View Corporate Center, 00 Xxxxxxxxx Xxxx, Xxxxxxxxxx, XX 00000
("Employer").
WITNESSETH:
WHEREAS, Employer is desirous of employing the Employee to work as an
Executive Vice President and Chief Operating Officer and Employee is desirous of
being so employed.
NOW THEREFORE, in consideration of the premises and the mutual covenants
herein set forth, the parties hereto agree as follows:
1. Employment. Employer hereby employs Employee for the services and
duties as required by an Executive Vice President and Chief Operating Officer
and Employee hereby accepts the employment upon the terms and conditions
hereinafter set forth.
2. Duties. Employee shall perform his/her duties and functions under this
Agreement in a manner satisfactory to the Employer. Employee's duties hereunder
shall include, but not be limited to, performing duties on behalf of the parent
corporation, if any, of Employer and Employer's affiliates and subsidiaries.
Employee's primary function shall be that of an Executive Vice President and
Chief Operating Officer. Employee shall devote his/her entire time, attention
and energies to the performance of his/her duties for Employer pursuant to this
Employment Agreement and shall not during the terms of this Employment Agreement
be engaged in any other same or similar business activity, whether or not such
business activity is pursued for gain, profit or other pecuniary advantage,
provided that the foregoing shall not prohibit investment activities by Employee
for his/her own benefit and account provided such investment activities by
Employee shall not require any services on Employee's part in any operations and
shall not interfere with the duties to be performed by Employee hereunder for
Employer. Employee shall not engage in any activities whatsoever which conflict
with the objectives of Employer's business or the business of Employer's parent
corporation and its affiliates and subsidiaries.
3. Term and Severance. This Employment Agreement shall not constitute an
agreement by the Employer to employ Employee for any specific period of time.
Employer does hereby agree that Employee shall be at all times an Employee at
will and the employment relationship may be terminated at any time by either
Employee or Employer. This Employment Agreement may be terminated by either
party for cause at any time upon written notice. "Cause" shall be defined to
mean any breach of this Employment Agreement, any willful or intentional act
having the effect of injuring the reputation, business or business relationships
of Employer, Employer's parent corporation if any, or its affiliates or
subsidiaries, or any criminal or fraudulent acts by either party. If during the
term of Employee's employment, the employment
relationship is terminated for any reason other than for Cause, Employee shall
be entitled to a severance payment of one-half of his yearly salary as of the
date of termination (less appropriate deductions for federal, state and city
income taxes, FICA contributions and any other deductions required by law), but
in no event less than Eighty-Seven Thousand Five Hundred Dollars and Zero Cents
($87,500.00). This severance payment is payable at the discretion of Employer
either as a lump sum within thirty (30) days of termination or over the six (6)
months immediately following termination on a semi-monthly basis.
4. Compensation. Employer shall pay to Employee, in consideration of the
services to be rendered hereunder, compensation in the form of a annual salary
to equal the rate of One Hundred and Seventy Five Thousand Dollars and Zero
Cents ($175,000.00) (less appropriate deductions for federal, state and city
income taxes, FICA contributions and any other deductions required by law) and
incentive opportunities based on performance. In addition, Employee is entitled
to a monthly car allowance of Six Hundred Dollars and Zero Cents ($600.00). In
the event of termination for any reason whatsoever, Employee forfeits all
commissions and/or bonuses as of the last day of payroll.
5. Vacations. Employee shall be entitled to four (4) weeks vacation
annually at full compensation during the term of this Employment/Agreement,
which vacation shall be scheduled in consultation with the appropriate project
manager of the Employer.
6. Illness or Incapacity. In the event Employee is unable to perform the
services required hereunder as a result of illness or physical or mental
incapacity for a continuous period of one hundred eighty (180) days during the
term of this Employment Agreement, the Employer may terminate Employee's
employment under this Employment Agreement on thirty (30) days notice without
further obligation.
7. Fringe Benefits. Employee shall be entitled to participate in all
existing and future benefit programs that Employer establishes and makes
available to Employer's employees in general.
8. Expenses. Employer shall also reimburse the Employee for all
reasonable entertainment and other business expenses incurred or paid by the
Employee in performing his/her duties under this Agreement, upon presentation by
the Employee of expense statements or vouchers and such other supporting
information as Employer may from time to time request, provided Employer shall
have previously approved such expenditures.
9. Completion of Assignments. Employee acknowledges that Employer or
Employee on behalf of the Employer, will commit Employee to various Customer
assignments from time to time and that these assignments require the Employee to
complete certain projects within certain time parameters. In the event of
termination, for any reason whatsoever, Employee agrees to use his/her best
efforts to complete the assignment or provide a reasonable transition period
that will not jeopardize the completion of the Customer's project.
10. Non-Competition. To induce Employer to enter into this Employment
Agreement, Employee covenants and agrees as follows:
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(a) For so long as Employee shall be employed by Employer pursuant to this
Employment Agreement or otherwise, and for a period of one (1) year after the
date on which Employee is no longer employed by Employer, Employee shall not:
(i) solicit any Customers for the purchase of any Services and/or Products which
may be furnished or offered by Employer or any parent, subsidiary or affiliate
of the Employer, and: (ii) employ or engage as an Independent Contractor, or
enter into a business relationship with any person who at such time is an
Officer or Employee of Employer, or who then is a partner, Principal or Employee
of Employer or any parent, subsidiary or affiliate of Employer at any time
during the term of this Agreement (any such person hereinafter referred to as a
"Targeted Employee") or offer any Targeted Employee such employment, engagement
or relationship, or during the term of this Agreement, advise, urge or counsel
any other person or legal entity to employ, engage as an Independent Contractor,
or enter into a business relationship with, any Targeted Employee, and; (iii)
compete with Employer within the State of Connecticut directly or indirectly,
whether as an Officer, Director, Shareholder, Partner, Independent Contractor,
Agent or Employee of any person or entity which is engaged in a business similar
to that of the Employer and which relationship was created as a result of and/or
during employment with Employer, and (iv) enter into a business relationship of
any nature with any supplier of any products sold by the Employer or any Parent,
Subsidiary or Affiliate of the Employer on or before the Effective Date first
written above, for the sale or distribution of any such Products or Services
sold or offered by the Employer, directly or indirectly, to any Customer.
(b) Employee acknowledges (i) that his/her position with Employer will
require the performance of Services which are special, unique, extraordinary and
intellectual in character and place him/her in a position of Confidence and
Trust with Employer's Customers and Employer's Employees and it's affiliate,
and; (ii) that the goodwill of Employer will be generated among Employer's
Customers, Potential Customer's and Employer's Employees by Employee during the
course of Services performed by him/her for Employer; and (iii) that the
covenants set forth above are necessary in order to protect and maintain the
goodwill to be generated by Employee on behalf of Employer; and (iv) that
Employer would not have entered into this Employment Agreement unless Employee
agreed to the stated covenants.
(c) Employee acknowledges that the covenants set forth herein are
reasonable as to time and scope and that the enforcement of the covenants set
forth above will not prevent him/her from earning a livelihood.
11. Confidential Information. Employee is being employed by Employer and
will be receiving wages or salary, benefits and other compensation in connection
therewith. In consideration thereof and in recognition of the specialized,
unique and highly confidential aspects of Employer's business to which Employee
may be exposed or in which Employee may participate during the course of his/her
employment, Employee is willing to undertake the obligations to be undertaken on
his/her part as hereinafter more fully set forth. The Employer is
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likewise willing to undertake the obligations to be undertaken on it's part as
hereinafter more fully set forth.
(a) For all purposes of this Agreement, the following terms have the
meanings respectively set for them as follows: (i) "Proprietary Information"
shall mean any and all sales data, internal procedures, future strategies,
plans, automation strategies, organization, inventions, research, designs,
products, processes, formulae, know-how, customer lists, trade secrets and/or
other non-public information or data related, directly or indirectly, to the
business of the Employer or to the business of the Employer's Customers as the
same is carried on from time to time, and; (ii) "Proprietary Rights" shall mean
all computer systems, programs, software, and devices, including information in
regards to design, methodology, techniques, and documentation thereof, all
patents, copyrights, rights of creators and/or similar rights and privileges,
whether domestic or foreign, statutory or at common law, filed or not filed,
perfected or unperfected, otherwise, relating to any Proprietary Information,
and; (iii) "Proprietary Proceeds" shall mean all proceeds and products of any
Proprietary Information and/or Proprietary Rights, and; (iv) "Proprietary
Assets" shall mean Proprietary Information and/or Proprietary Rights and/or
Proprietary Proceeds, considered collectively or separately. Employee
acknowledges that any and all Proprietary Assets wholly or partially created,
completed and/or developed by Employee, acting alone or jointly with others at
any time during Employee's employment with the Employer or within a period of
one (1) year following the termination of Employee's employment with the
Employer, shall be deemed to be and to have been at all times, the sole and
exclusive property of Employer.
(b) Employee specifically agrees, confirms and acknowledges that (i) any
and all Proprietary Assets, however, whenever and from whomever acquired by
Employer, are and shall at all times remain the sole and exclusive property of
the Employer, and; (ii) Employee shall not use, possess, disclose, transfer
and/or otherwise deal with any such Proprietary Assets at any time during
his/her employment other than specifically within the scope of his/her
employment and in furtherance of the business and affairs of the Employer, and;
(iii) Employee shall not use, possess, disclose, transfer and/or otherwise deal
with any Proprietary Asset at any time after the termination of his/her
employment under any circumstances whatsoever, provided that following
termination of Employee's employment, these restrictions shall not apply to such
Proprietary Assets which are then in the public domain (provided the Employee
was not responsible, directly or indirectly, for such Proprietary Assets
entering the public domain), without the written consent of the Employer.
(c) Employee agrees that he/she shall not, throughout the term and/or
within the scope of his/her employment, use, possess, disclose, transfer and/or
otherwise deal with any information, rights, proceeds or other assets which are
in the nature of Proprietary Assets relating to the business or affairs of
Employer for any purpose other than the business of Employer.
(d) Employee agrees that he/she, both throughout the term of his/her
employment with Employer and at any and all times following the termination
thereof, execute and deliver all such further instruments and documents, and do
and perform all such further acts as may be necessary or helpful and/or may be
reasonably requested by Employer in furtherance of the purposes and intent of
this Agreement. By way of illustration and not by way of limitation of the
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foregoing, Employee specifically agrees that he/she shall: (i) immediately
communicate and thoroughly describe to Employer in writing any and all such
Proprietary Information, and (ii) promptly execute and deliver all such
instruments or agreements of assignment and/or transfer as the Employer may from
time to time request to carry out the purposes and intent of this Agreement,
and; (iii) assist the Employer, at such times and in such manner as Employer may
request in connection with Employer's efforts to secure, apply for, renew or
otherwise perfect Proprietary Rights with respect to any and all Proprietary
Assets, and; (iv) upon the termination of Employee's employment, immediately
deliver to Employer any and all written, recorded or other physical evidence of
any and all Proprietary Assets in his/her possession or under his/her control.
(e) Employee represents and covenants that he/she is not presently and
will not hereafter become a party to any contract or agreement which contravenes
any of the terms, provisions, purposes or intent of this Agreement.
12. Cost & Expenses. In the event Employer shall incur or sustain any
costs or expenses including attorney's fees, in connection with or arising out
of any breach, threatened breach or otherwise to obtain the full and prompt
performance of this Employment Agreement by Employee, Employee shall pay such
costs or expenses on Employer's demand.
13. Amendment & Modification. This Employment Agreement contains the
entire agreement between the parties with respect to the subject matter hereof.
Subject to applicable law, this Employment Agreement may be amended, modified
and supplemented by written agreement of Employer and Employee with respect to
any of the terms contained herein.
14. Waiver of Compliance. Any failure of either party to comply with any
obligation, covenant, agreement or condition on its part contained herein may be
expressly waived in writing by the other party but such waiver or failure to
insist upon strict compliance shall not operate as a waiver of any subsequent or
other failure. Whenever this Employment Agreement requires or permits consent
by or on behalf of any party, such consent shall be given in writing.
15. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered by hand or mailed, certified or registered mail
with postage prepaid, return receipt requested, and properly addressed to the
other party at the addresses first above written.
16. Assignment. This Employment Agreement shall inure to the benefit of
Employee and Employer and be binding upon the successors and general assigns of
Employer and the heirs, executors and administrators of Employee. Except as
provided herein, this Employment Agreement shall not be assignable. Any
assignment or delegation made by Employee shall be void ab initio.
17. Enforceability. In the event that it is determined that this
Employment Agreement is unenforceable in any respect, it shall be construed to
apply and be enforceable to the maximum extent permitted by applicable law.
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18. Applicable Law. This Employment Agreement shall be construed and
enforced in accordance with the laws of the State of Connecticut.
19. Construction. This Agreement shall be deemed as regards each
reference contained herein to "he", "him", or "his", to refer to "she", "he", or
"hers", as the context may require, and as regards each reference to the
singular to include the plural and vice versa, as the context may require.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the day and the year first written above.
COMMAND SYSTEMS INCORPORATED
/s/ Xxxxxx X. Xxxxxx 1/1/98
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Xxxxxx X. Xxxxxx Date
President
/s/ Xxxxxxx X. Xxxxxxx 1/1/98
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Xxxxxxx X. Xxxxxxx Date
Executive Vice President
& Chief Operating Officer
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