EXHIBIT 10.16
EMPLOYMENT AGREEMENT
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Employment Agreement ("Agreement") made and entered into effective no later than
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October 5, 1995 by and between Xxx Xxxxxx (the "Employee"), and TSI
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International Software Ltd. ("TSI"), a Delaware corporation having its principal
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place of business at 00 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx 00000.
WHEREAS, TSI wishes to employ the Employee and the Employee wishes to be
employed under the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. EMPLOYMENT AND TERM.
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1.1 TSI agrees to employ the Employee as Vice President of Finance and
Administration and Chief Financial Officer, and the Employee agrees to render
his full-time services to TSI for a term of one (1) year, which term shall
commence as of the date of this Agreement and terminates at the end of the first
full fiscal year thereafter, subject to the terms of Article 6, below, and
annual renewal for one (1) year increments as set forth in Paragraph 1.2. The
Employee agrees to devote his full business time and the best of his abilities
to the faithful and diligent performance of his services to TSI under the
direction of the President of TSI.
1.2 Unless either party shall have given written notice of non-renewal to
the other party no fewer than thirty (30) days before the expiration of the
initial or then current renewal term, this Agreement shall automatically renew
for successive periods of one (1) year.
1.3 In the event TSI is sold or recapitalized or substantially all of the
assets of TSI are sold (the "Sale of TSI"), the remaining term of this Agreement
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shall be one (1) year from the date of such transaction unless otherwise agreed
between the parties. If termination should occur as a result of the Sale of
TSI, the Employee will receive a severance compensation of six (6) months salary
as outlined in Paragraph 2.1, payable in accordance with TSI's standard payroll
practices and six (6) months continuance of eligible benefits as outlined in
Paragraph 3.1.
2. COMPENSATION.
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2.1 TSI agrees to pay the Employee a salary at the annualized rate of One
Hundred Forty-Six Thousand Dollars ($146,000.00), payable in accordance with
TSI's standard payroll practices. This salary is for the initial term of this
Agreement, and thereafter will be as determined by the President of TSI.
2.2 A bonus plan of Twenty-Five Thousand Dollars ($25,000.00) per year for
meeting corporate objectives will be available.
3. BENEFITS.
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3.1 The Employee shall be entitled to participate on the same basis,
subject to the same qualifications as other TSI employees and pursuant to TSI's
then prevailing policies, in any group medical, hospitalization, or other fringe
benefit plans in effect with respect to employees of TSI in general but not
including any group profit sharing or other profit-based incentive program.
3.2 The Employee shall be entitled to the same number of paid holidays per
year as set forth by TSI for its employees in general plus fifteen (15) paid
vacation days to be scheduled by the mutual agreement of the parties.
4. STOCK OPTIONS. As soon as is practical after signing of this Agreement by
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both parties, but no later than three (3) months after signing, TSI shall issue
approximately 48,000 TSI stock options to the Employee as described in the TSI
Stock Option Plan attached hereto as Appendix A.
5. EMPLOYMENT GUIDELINES. The Employee agrees to at all times be bound by and
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adhere to the Conditions of Employment attached hereto as Appendix B and
incorporated herein by reference, and to use his best efforts to protect the
proprietary and confidential materials and information of TSI and of TSI's
clients, including valuable trade secrets.
6. TERMINATION.
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6.1 This Agreement shall terminate and all payments due hereunder shall
cease, except to the extent accrued, upon death of the Employee, without further
act of TSI. If, however, at the time of Employee's death, Employee is receiving
severance compensation per the terms of Paragraph 1.3, unpaid severance will be
paid to the Employee's estate in a lump sum.
6.2 TSI shall have the right to terminate this Agreement and any payments
due hereunder upon prior written notice to the Employee if a licensed physician
employed by the Board of Directors of TSI shall determine that the Employee, by
reason of physical or mental disability (excluding infrequent and temporary
absences due to ordinary transitory illness) shall be unable to perform the
services required of him hereunder for more than three (3) consecutive months or
an aggregate of six (6) months during any twelve (12) month period, except as
otherwise provided by law.
6.3 TSI shall have the right to terminate this Agreement, without further
compensation, upon a breach or failure to fulfill and perform obligations and
duties hereunder, which condition, breach or failure Employee shall fail to
remedy within ten (10) days after written demand from TSI. Further, TSI shall
have the right to terminate this Agreement, without further compensation, if,
(i) in the opinion of the Board of Directors of TSI, the Employee is guilty of
insubordination, fraud, dishonesty, misconduct or negligence in connection with
the performance of duties hereunder, (ii) the Employee is convicted of a felony
or of a crime involving moral turpitude, (iii) the Employee causes TSI
disrepute, or (iv) otherwise for good cause.
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6.4 TSI shall have the right to terminate this Agreement, for convenience,
at the discretion of the Board of Directors. If such termination occurs, the
Employee will receive a severance compensation of six (6) months salary as
outlined in Paragraph 2.1, payable in accordance with TSI's standard payroll
practices, and six (6) months of continuance of eligible benefits as outlined in
Paragraph 3.1, and shall be entitled to no other payment or benefit from TSI.
6.5 Upon termination or expiration of this Agreement, irrespective of the
reason therefor, the Employee shall promptly turn over to TSI all proprietary
and confidential materials of the kind referred to in Section 5 and all tangible
forms of the Employee's work product (including work files) without retaining
any copies or duplicates thereof, except as to which TSI may in writing give
permission.
7. NEGATIVE COVENANT.
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7.1 The Employee agrees that during the term of this Agreement (including
any renewal terms hereunder) and for a period of one (1) year following the
termination of this Agreement, he will not, directly or indirectly, own,
operate, manage, join, control, or participate in the ownership, management,
operation or control of, or be connected with as a partner, stockholder,
director, officer, agent, employee, or consultant, any business, firm, or
corporation in any capacity that involves the development, production or sale of
any product that is directly competitive with TSI in the territories TSI serves;
provided, however, that nothing in this Section 7.1 shall bar the acquisition of
any publicly traded securities which do not confer upon the Employee the right
to control or influence the policy of the issuer.
7.2 The Employee further agrees that for a period of one (1) year
following the termination of this Agreement, he will not, without the prior
written consent of TSI, (a) solicit for employment any of the staff of TSI or of
TSI's customers, or (b) solicit the business of TSI's customers for products
that are directly competitive to TSI products.
7.3 In the event a court of competent jurisdiction finds any part of this
Article 7 unenforceable, the parties agree that such finding shall not effect or
render invalid or unenforceable any other provision of this Article. The
parties further agree to execute any amendments necessary to accomplish the
intent of this Article to the fullest extent possible under the law.
8. REMEDIES. The parties hereto recognize that, in the event of any breach by
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the Employee of the provisions of Sections 5, 6 or 7 hereof, damages may be
difficult, if not impossible, to ascertain and it is therefore agreed that TSI,
in addition to and without limiting any other remedy it might have under this
Employment Agreement, or at law or in equity, shall be entitled to an injunction
against the Employee issued by any court of competent jurisdiction enjoining any
such breach. The Employee agrees to reimburse TSI for all out-of-pocket costs
and expenses, including reasonable attorney's fees, incurred by TSI by reason of
any such breach; provided, however, that if a court of competent jurisdiction in
any action wherein TSI is the claimant with respect to such breach shall
determine that no such breach occurred or is likely, and if any appeal therefor
be taken by TSI where such determination shall be fully and finally upheld, TSI
shall reimburse the Employee for all out-of-pocket costs and expenses, including
reasonable attorney's fees, incurred by the Employee by reason of such action
and any appeal.
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9. REPRESENTATION AND WARRANTY. Employee represents and warrants that he is
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not now and was not on the date of commencement of this Agreement, a party to
any Agreement, contract or understanding, whether of employment or otherwise,
which would in any way restrict or prohibit him from undertaking or performing
employment in accordance with the terms and conditions of this Agreement.
10. MISCELLANEOUS.
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10.1 Should any provision or part of this Employment Agreement be
declared void or unenforceable by any court or administrative body of competent
jurisdiction, such provisions or part shall be deemed severable and, without
further action by the parties to this Agreement, shall be severed from the
remainder of this Agreement which shall continue in all respects valid and
enforceable.
10.2 Any notices or communications hereunder shall be in writing
and shall be personally delivered or sent by registered or certified mail to the
addresses specified herein or, after proper notice, to such addresses as the
parties may specify.
10.3 This Agreement shall be binding upon and inure to the benefit
of TSI, its successors or assigns, or any corporation which acquires all or
substantially all of its assets. This Agreement is personal as to the Employee
and shall not be assignable by the Employee.
10.4 This Agreement constitutes the entire understanding of the
parties hereto with respect to the Employee's employment and his compensation
therefor and supersedes any prior Agreements and understandings between the
parties concerning employment or compensation.
10.5 This Agreement shall be governed by and construed under the
laws of the State of Connecticut.
10.6 The captions appearing in this Agreement appear as a matter of
convenience only and in no way define or limit the scope and intent of any of
the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first set forth above.
For TSI International Software Ltd. For the Employee: Xxx Xxxxxx
00 Xxxxxxx Xxxx 70 Xxxxxx Road
Wilton, CT 06897 Xxxxxxxxxx, XX 00000
By: /s/ Xxxxxxxxx Xxxxxx By: /s/ Xxx Xxxxxx
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Xxxxxxxxx X. Xxxxxx Xxx Xxxxxx
President and CEO
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