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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), is made and entered into
as of this 17th day of January, 2001, by and between E-Sync Networks, Inc., a
Delaware corporation with its principal offices located at 00 Xxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000 (which, together with any parent companies,
subsidiaries, affiliates and successors shall be referred to as the "Company"),
and Michael W.G. Fix (the "Executive").
WITNESSETH
WHEREAS, the Company has a need for the Executive's personal services
in an executive capacity; and
WHEREAS, the Executive and the Company desire to enter into a formal
Employment Agreement to fully recognize the contributions of Executive to the
Company and to assure continuous harmonious performance of the affairs of the
Company.
NOW, THEREFORE, in consideration of the mutual promises, terms,
provisions, and conditions contained herein, including the noncompetition and
nonsolicitation provisions, the parties agree as follows:
1. Position.
The Company hereby agrees to employ the Executive to serve in the role
of Chairman and Chief Executive Officer of the Company. The Executive accepts
such employment upon the terms and conditions hereinafter set forth, and further
agrees to perform to the best of the Executive's ability the duties consistent
with such position as determined by the Company's Board of Directors (the
"Board"). The Executive shall devote his full business time and attention to his
duties.
2. Term of Employment.
(a) The term of Executive's employment under this Agreement will
commence on the date hereof, which shall be deemed the Effective Date of this
Agreement (the "Effective Date"). Subject to the provisions of Sections 10 and
11 of this Agreement, the term of Executive's employment hereunder shall be for
a term of one (1) year from the Effective Date subject to extension in
accordance with the provisions of the following paragraph, unless terminated
earlier in accordance with the terms hereof (the "Term").
(b) On each one-year anniversary of the Effective Date, Executive's
employment hereunder shall be automatically extended for a period ending on the
first anniversary of such date, unless earlier terminated in accordance with the
terms hereof, and unless either Executive or the Company shall have given
written notice to the other of a desire that such automatic extension not occur,
which notice was given no later than sixty (60) days prior to the relevant
anniversary of the Effective Date. If either party gives such notice and absent
earlier termination in accordance with the terms hereof, the Expiration Date (as
defined below) shall be the last day of the Term.
The last day of the Term shall be referred to as the "Expiration Date,"
irrespective of any earlier termination in accordance with the terms of this
Agreement.
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3. Compensation and Benefits.
(a) Salary. As compensation for all services to be rendered pursuant to
this Agreement, the Company agrees to pay the Executive (i) commencing on the
Effective Date and ending on the first anniversary thereof, a base salary at an
annual rate of TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000) and (ii) during the
twelve month period commencing on the first anniversary of the Effective Date
and each twelve month period commencing on each anniversary of the Effective
Date thereafter during the Term, at an annual salary rate as determined by the
Board or its Compensation Committee, but in any event at least equal to the
annual salary rate in effect immediately preceding the commencement of the
twelve month period in question (the "Salary"), payable in such installments as
is the standard payroll practice of the Company.
(b) Bonus. At the conclusion of each fiscal year of the Company period
during which the Executive is employed by the Company, the Executive shall be
eligible to receive a bonus, at the sole discretion of the Board, based on the
attainment by the Company of certain performance objectives set by the Board or
the Compensation Committee and communicated to the Executive. Bonuses, if any,
shall be payable within ninety (90) days after the end of each fiscal year.
(c) Stock Options. On the date hereof, the Company shall grant the
Executive an option to purchase 478,296 shares of Common Stock, $.01 par value
per share, of the Company (the "Common Stock") which option shall be deemed a
Non-Qualified Option under the Internal Revenue Code of 1986, as amended (the
"Code") and an additional option to purchase 258,618 shares of Common Stock
which option shall be deemed an Incentive Stock Option under the Code, each at
an exercise price of $1.16 per share and which options represent a number of
shares equal to 5% of the outstanding capital stock of the Company (736,914
shares of Common Stock) calculated as of the date hereof (the "Options").
245,638 of the shares subject to the Options shall be vested as of the date
hereof and the remainder of the shares shall vest ratably on a monthly basis
over a two-year period commencing on June 30, 2001. Notwithstanding the
foregoing, the Options shall automatically accelerate and become fully vested
and immediately exercisable upon the occurrence of a "Change of Control" of the
Company (as defined in Section 11(b) hereof). The Options shall be subject to
the terms and conditions of the Company's Amended and Restated 1999 Long-Term
Incentive Plan, and a nonqualified stock option agreement or incentive stock
option agreement, as applicable, each of which is attached hereto as Exhibit A.
In addition, the Executive shall be granted additional options on the
same terms and conditions as the Options such that the Executive shall continue
to own or have options to acquire 5% of the outstanding capital stock of the
Company until June 30, 2001.
(d) Benefits. The Executive shall be entitled to participate in all
employee benefit plans which the Company provides or may establish from time to
time for the benefit of its employees, including without limitation group life,
medical, surgical, dental and other health insurance, disability, deferred
compensation, profit-sharing and similar plans. To the extent that any benefit
is governed by the terms of a formal Plan Document, participation in such
benefit shall be governed by the Plan Document. The Executive shall also be
entitled to four (4) weeks of paid vacation per year in accordance with the
Company's vacation policy. Any and all vacation shall be taken at times mutually
agreeable to the Executive and the Board.
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(e) Life Insurance. The Company hereby agrees for the period
of the Term to reimburse the Executive for annual premiums paid by the Executive
on his existing life insurance policy.
(f) Parking Reimbursement. During the Term, the Company shall
pay the Executive $500 a month to reimburse the Executive for parking expenses.
(g) Expenses. The Company shall pay or reimburse the Executive
for all reasonable out-of-pocket expenses actually incurred by him during the
Term in performing services hereunder, provided that the Executive properly
accounts for and submits receipts for such expenses in accordance with the
Company's policies.
4. Confidentiality, Disclosure of Information.
The Executive recognizes and acknowledges that he will have access to
Confidential Information (as defined below) relating to the business or
interests of the Company or of persons with whom the Company may have business
relationships. Except as permitted herein, the Executive will not during the
Term of this Agreement, or at any time following termination of this Agreement,
disclose or permit to be known to any other person or entity (except as required
by applicable law or in connection with the performance of the Executive's
duties and responsibilities hereunder), or use for the Executive's own improper
benefit or gain, any Confidential Information of the Company. The term
"Confidential Information" includes, without limitation, information relating to
the Company's business affairs, proprietary technology, trade secrets,
processes, plans, products, source codes, sources of supply and material,
operating or other cost-data, research and development data, know-how, market
studies and forecasts, competitive analyses, pricing policies, price lists or
data relating to pricing of the Company's products or services, training
materials, supplier information, operating procedures, employee lists,
employment agreements, personnel policies, the substance of agreements with
customers, suppliers and others, marketing arrangements, and customer lists,
customer proposals, and information relating to business operations and
strategic plans of third parties with which the Company has or may be assessing
commercial arrangements, any of which information is not generally known to the
public or to actual or potential competitors of the Company (or is known through
Executive's breach of this Agreement). Therefore, the Executive will not,
without the prior written consent of the Board, disclose such Confidential
Information or use the same, provided, however, that in the course of the
Executive's services to the Company, the Executive may disclose such
Confidential Information as the Executive deems necessary to carry out the
Executive's duties to the Company. This obligation shall continue until such
Confidential Information becomes publicly available, other than pursuant to a
breach of this Section 4 by the Executive, regardless of whether the Executive
continues to be employed by the Company. It is further agreed and understood by
and between the parties to this Agreement that all information and records
relating to the Company, as hereinabove described, shall be the exclusive
property of the Company and, upon termination of Executive's employment with the
Company, all documents, records, reports, writings and other similar documents
containing Confidential Information, including copies thereof, then in the
Executive's possession or control shall be returned to and left with the
Company.
5. Inventions Discovered by Executive.
The Executive shall promptly disclose to the Company any invention,
improvement, discovery, process, formula, design, method or other intellectual
property, whether or not patentable, whether or not copyrightable (collectively,
"Inventions"), that relates to any line of business in which the Company
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engages and is made, conceived or first reduced to practice by the Executive,
either alone or jointly with others, while performing services hereunder (or, if
based on or related to any Confidential Information, made by the Executive
within two (2) years after the termination of such employment), (a) which
pertain to any line of business activity of the Company, whether then conducted
or then being planned by the Company, (b) which are aided by the use of time,
material or facilities of the Company, whether or not during working hours or on
the Company premises, or (c) which relate to any of the Executive's work during
the period of the Executive's employment with the Company, whether or not during
normal working hours. The Executive hereby assigns to the Company all of the
Executive's right, title and interest in and to any such Inventions. During and
after the Term, the Executive shall execute any documents necessary to perfect
the assignment of such Inventions to the Company and to enable the Company to
apply for, obtain and enforce patents, trademarks and copyrights in any and all
countries on such Inventions, including, without limitation, the execution of
any instruments and the giving of evidence and testimony, without further
compensation beyond the Executive's agreed compensation during the course of the
Executive's employment. Without limiting the foregoing, the Executive further
acknowledges that all original works of authorship by the Executive, whether
alone or jointly with others related to the Executive's employment with the
Company and which are protectable by copyright are "works made for hire" within
the meaning of the United States Copyright Act, 17 U.S.C. Section 101, as
amended, the copyright of which shall be owned solely, completely and
exclusively by the Company. If any Invention is considered to be work not
included in the categories of work covered by the United States Copyright Act,
17 U.S.C. Section 101, as amended, such work shall be owned solely by, or hereby
assigned or transferred completely, exclusively to, the Company. The Executive
hereby irrevocably designates counsel to the Company as the Executive's agent
and attorney-in-fact to execute and file any such document and to do all lawful
acts necessary to apply for and obtain patents and copyrights and to enforce the
Company's rights under this Section. This Section 5 shall survive the
termination of this Agreement.
6. Non-Competition and Non-Solicitation.
The Executive acknowledges that the Company has invested substantial
time, money and resources in the development and retention of its Inventions,
Confidential Information (including trade secrets) customers, accounts and
business partners, and further acknowledges that during the course of the
Executive's employment the Executive will have access to the Company's
Inventions and Confidential Information (including trade secrets), and will be
introduced to existing and prospective customers, accounts and business partners
of the Company. The Executive acknowledges and agrees that any and all
"goodwill" associated with any existing or prospective customer, account or
business partner belongs exclusively to the Company including, but not limited
to, any goodwill created as a result of direct or indirect contacts or
relationships between the Executive and any existing or prospective customers,
accounts or business partners. The parties to this Agreement expressly
acknowledge and agree that the Executive possesses skills that are special,
unique or extraordinary, and that the value of the Company depends, in
substantial part, upon the Executive's use of such skills on the Company's
behalf.
In recognition of this, the Executive covenants and agrees that:
(a) During the Executive's employment with the Company, the
Executive may not, without the prior written consent of the Board, (whether as
an employee, agent, servant, owner, partner, consultant, independent contractor
or representative, stockholder or in any other capacity whatsoever): (i) perform
any work other than work for the Company on Company time, on Company equipment,
or at the Company's offices, (ii) conduct any business with any current or
prospective customer of the Company on behalf of any entity or person (including
the Executive) other than the Company, or (iii) perform any work relating in any
way to the e-commerce markets targeted by the Company on behalf of any entity or
person (including the Executive) other than the Company.
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(b) During the Executive's employment with the Company and for a period
of one (1) year commencing on the termination of the Executive's employment from
the Company, the Executive may not (whether as an employee, agent, servant,
owner, partner, consultant, independent contractor or representative,
stockholder or in any other capacity whatsoever) participate in any activity
relating in any manner to the development and/or sale or attempted sale of any
of the products or services of the type or nature provided and/or sold by the
Company if such activity is performed on behalf of any entity or person
(including the Executive) that is engaged in the business of targeting the same
(or substantially similar) e-commerce markets as those targeted by the Company,
unless the Executive obtains prior written consent from the Board. The parties
agree that, given the global nature of the internet and/or world wide web, any
geographical limitations on this non-competition agreement are inappropriate.
(c) During the Executive's employment with the Company and for a period
of one (1) year commencing on the termination of the Executive's employment with
the Company, the Executive may not, directly or indirectly, entice, solicit or
encourage any Company employee or any individual who was employed by the Company
during the six-month period prior to Executive's termination of employment to
leave the employ of the Company or any independent contractor who provided
services to the Company as of Executive's termination or during the six-month
period prior to Executive's termination of employment to sever the independent
contractor's engagement with the Company, nor may the Executive, directly or
indirectly, be involved in the recruitment of any Company employee or any
independent contractor who is then-engaged by the Company on behalf of the
Executive or any person or entity other than the Company, absent prior written
consent to do so from the Board.
(d) During the Executive's employment with the Company and for
a period of one (1) year commencing on the termination of the Executive's
employment with the Company, the Executive may not, directly or indirectly,
entice, solicit or encourage any customer or prospective customer of the Company
to cease doing business with the Company, reduce the level of business it
conducts with the Company or commence doing business with any other entity.
7. Non-Disparagement.
The Executive hereby agrees that during the course of the Executive's
employment with the Company and at all times thereafter, the Executive will not
make any statement that is professionally or personally disparaging about, or
adverse to, the interests of the Company, any of its officers, directors,
shareholders or employees including, but not limited to, any statement that
disparages any person, product, service, finances, financial condition,
capabilities or other aspect of the business of the Company or any of its
officers, directors, shareholders or employees. The Executive further agrees
that during the course of the Executive's employment with the Company and at all
times thereafter, the Executive will not engage in any conduct that is intended
to or has the result of inflicting harm upon the professional or personal
reputation of the Company or any of its officers, director, shareholders or
employees.
8. Provisions Necessary and Reasonable.
(a) The Executive agrees that (i) the provisions of Sections 4, 5, 6
and 7 of this Agreement are necessary and reasonable to protect the Company's
Confidential Information, Inventions, and goodwill; (ii) any and all specific
temporal, geographic and substantive provisions set forth in Section 6 of this
Agreement are reasonable and necessary to protect the Company's business
interests; and (iii) in the event of any breach of any of the covenants set
forth herein, the
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Company would suffer substantial irreparable harm and would not have an adequate
remedy at law for such breach. In recognition of the foregoing, the Executive
agrees that in the event of a breach or threatened breach of any of these
covenants, in addition to such other remedies as the Company may have at law,
without posting any bond or security, the Company shall be entitled to seek and
obtain equitable relief, in the form of specific performance, and/or temporary,
preliminary or permanent injunctive relief, or any other equitable remedy which
then may be available. The seeking of such injunction or order shall not affect
the Company's right to seek and obtain damages or other equitable relief on
account of any such actual or threatened breach.
(b) If any of the covenants contained in Sections 4, 5, 6 and 7 hereof,
or any part thereof, are hereafter construed to be invalid or unenforceable, the
same shall not affect the remainder of the covenant or covenants, which shall be
given full effect without regard to the invalid portions.
(c) If any of the covenants contained in Sections 4, 5, 6 and
7 hereof, or any part thereof, are held to be unenforceable by a court of
competent jurisdiction because of the temporal or geographic scope of such
provision or the area covered thereby, the parties agree that the court making
such determination shall have the power to reduce the duration and/or geographic
area of such provision and, in its reduced form, such provision shall be
enforceable.
(d) The parties hereto intend to and hereby confer jurisdiction to
enforce the covenants contained in Sections 4, 5, 6 and 7 hereof upon the courts
of any state within the geographical scope of such covenants. In the event that
the courts of any one or more of such states shall hold any such covenant wholly
unenforceable by reason of the breadth of such scope or otherwise, it is the
intention of the parties hereto that such determination not bar or in any way
affect the Company's right to the relief provided above in the courts of any
other states within the geographic scope of such other covenants, as to breaches
of such covenants in such other respective jurisdictions, the above covenants as
they relate to each state being, for this purpose, severable into diverse and
independent covenants.
9. Representations Regarding Prior Work and Legal Obligations.
(a) The Executive represents that the Executive has no agreement or
other legal obligation with any prior employer or any other person or entity
that restricts the Executive's ability to continue employment with, or to
perform any function for the Company.
(b) The Executive has been advised by the Company that at no time,
either during any employment discussions or at any time thereafter, should the
Executive divulge to or use for the benefit of the Company any trade secret or
confidential or proprietary information of any previous employer. The Executive
expressly acknowledges that the Executive has not divulged or used any such
information for the benefit of the Company.
(c) The Executive acknowledges that the Executive has not and will not
misappropriate any Invention that the Executive played any part in creating
while working for any former employer.
(d) The Executive acknowledges that the Company is basing important
business decisions on these representations, and affirms that all of the
statements included herein are true.
10. Termination and Severance.
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Notwithstanding the provisions of Section 2 of this Agreement, the
Executive's employment hereunder may terminate under the following
circumstances:
(a) Termination by the Company Without Cause. The Executive's
employment hereunder may be terminated, without Cause (as defined below) by the
Company upon written notice to the Executive, provided, however, that if the
Company terminates the Executive's employment without Cause, (1) the Company
shall continue to pay the Executive's Salary and medical, dental health and life
insurance benefits for a period of twelve (12) months from the date of
termination and (2) the Executive shall be entitled to any bonus earned but
unpaid with respect to any prior fiscal year and a pro rata bonus for the year
in which the such termination occurs, such bonuses to be paid if and when such
bonuses would have been paid had Executive remained employed by the Company.
(b) Termination by the Company for Cause. The Company may terminate
this Agreement for Cause at any time, upon written notice to the Executive
setting forth in reasonable detail the nature of such Cause which notice shall
be effective immediately unless a later date is stated in such notice. For
purposes of this Agreement, the Company shall have "Cause" to terminate
Executive's employment hereunder upon (1) any act or omission that consists of
the Executive's material breach of the terms of this Agreement; (2) the
Executive's material failure to perform the Executive's duties after notice by
the Company of such failure and the expiration of a twenty (20) day period in
which to cure such failure; (3) the Executive's commission of any felony
involving moral turpitude or that relates to Company business; (4) the
Executive's use or possession of illegal drugs; and (5) any other misconduct by
the Executive that constitutes cause as that term has been defined by the common
law of the State of Connecticut. Executive shall not be deemed to have been
terminated for Cause unless (1) reasonable notice has been delivered to him
setting forth the reasons for the Company's intention to terminate for Cause,
and (2) a period of twenty (20) days has elapsed since delivery of such notice
during which Executive was afforded an opportunity to cure, if capable of
remedy, the reasons for the Company's intention to terminate for Cause. Upon the
giving of written notice of termination for Cause of Executive's employment, the
Company shall have no further obligation or liability to the Executive other
than for Salary through the date of termination, any bonus earned but unpaid
with respect to any prior fiscal year and any accrued but unused vacation time.
(c) Termination by Executive for Good Reason. The Executive may resign
and terminate this Agreement for Good Reason (as defined below), provided,
however, that upon notice of the Executive's decision to terminate for Good
Reason, the Company shall have twenty (20) days in which to cure such Good
Reason. If the Company fails to cure such Good Reason within twenty (20) days,
the Executive may resign and terminate this Agreement for Good Reason. If the
Executive terminates for Good Reason, the Executive shall be entitled to (1)
continue receiving Salary at the same rate the Executive was receiving Salary
immediately before such Good Reason and medical, dental health and life
insurance benefits for a twelve (12) month period from the date of resignation
from the Company and (2) any bonus earned but unpaid with respect to any prior
fiscal year and a pro rata bonus for the year in which the such termination
occurs, such bonuses to be paid if and when such bonuses would have been paid
had Executive remained employed by the Company.
Good Reason shall mean any of the following which occurs at any time
during Executive's employment with the Company:
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(i) any significant diminution, without the Executive's prior
consent, in the Executive's position;
(ii) any reduction in the Executive's Salary in effect on the
date hereof or as the same may be increased during the Executive's employment,
without the Executive's prior consent; or
(iii) any material breach by the Company of any material
provision of this Agreement.
In no event shall the Executive have Good Reason to terminate
employment hereunder unless the Executive provides the Board of Directors of the
Company with written notice of the reasons for which the Executive seeks to
terminate, and the Company fails to cure such breach within twenty (20) days
after receiving written notice thereof from the Executive.
(d) Death. In the event of the Executive's death during the Term of
this Agreement, the Executive's employment hereunder shall immediately and
automatically terminate, and the Company shall continue to pay the Executive's
Salary for a three (3) month period or for such shorter period of time until the
Executive's beneficiary(s) shall have received the first payment under any life
insurance policy of the Executive. The Company shall have no further obligation
or duty to the Executive other than for Salary as aforesaid, any accrued but
unused vacation time, and any bonus earned but unpaid with respect to any prior
fiscal year and a pro rata bonus for the year in which the death occurs, such
bonuses to be paid if and when such bonuses would have been paid had Executive
remained employed by the Company.
(e) Disability. The Company may terminate the Executive's
employment hereunder, upon written notice to the Executive, in the event that
the Executive becomes disabled during the Executive's employment under this
Agreement through any illness, injury, accident, or condition of either a
physical or psychological nature and, as a result, is, with or without
reasonable accommodation, unable to perform the essential functions and services
contemplated hereunder for (a) a period of ninety (90) consecutive days, or (b)
for shorter periods aggregating one hundred twenty (120) days during any twelve
(12) month period during the Term where such disability has been determined to
exist by either (i) the Company's disability insurance carrier or (ii) by the
Board in good faith based on competent medical advice. Any such termination
shall become effective upon mailing or hand delivery of notice that the Company
has elected its right to terminate under this subsection 10(e), and the Company
shall have no further obligation or duty to the Executive other than for Salary
through the date of termination, any accrued but unused vacation time, and any
bonus earned but unpaid with respect to any prior fiscal year and a pro rata
bonus for the year in which the such termination occurs, such bonuses to be paid
if and when such bonuses would have been paid had Executive remained employed by
the Company.
11. Change of Control.
(a) In the event of a Change of Control (as defined herein), and if,
subsequent to such Change of Control, the Executive's job duties and, Salary and
bonus, if any, are not substantially similar to those enjoyed or performed by
the Executive prior to such Change of Control, then the Executive may terminate
this Agreement at any time after such Change of Control occurs by giving at
least thirty (30) days prior written notice to the Company. In the event the
Executive wishes to terminate this Agreement pursuant to this Section 11, the
Executive shall specify a date of termination to occur at least thirty (30) days
following the date of mailing or hand delivery of a
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written notice of termination. In the event this Agreement is terminated by the
Executive pursuant to this Section 11, at the time of termination, the Company
must provide the Executive with the following in lieu of any compensation or
benefits payable or provided under Section 10 hereof:
(i) the Executive's Salary at the rate in effect on
the date of the Change of Control through the date of termination, plus
any accrued but unused vacation time; and
(ii) three (3) times the Executive's average annual
Salary and bonus, if any, which was payable by the Company and was
includable by the Executive in his gross income for federal income tax
purposes with respect to the five most recent taxable years of the
Executive ending prior to the Change of Control (or such portion of
such period during which the Executive was a full-time employee of the
Company), less one dollar.
(b) As used herein, a "Change of Control" shall be deemed to occur
immediately upon the first to occur of:
(i) (A) the consummation of any consolidation or
merger of the Company (x) where the shareholders of the Company, immediately
prior to the consolidation or merger, would not, immediately after the
consolidation or merger, beneficially own, directly or indirectly, shares
representing in the aggregate more than fifty percent (50%) of the combined
voting power of all the outstanding securities of the corporation issuing cash
or securities in the consolidation or merger (or of its ultimate parent
corporation, if any), or (y) where the members of the Board of Directors of the
Company, immediately prior to the consolidation or merger, would not,
immediately after the consolidation or merger, constitute more than fifty
percent (50%) of the Board of Directors of the corporation issuing cash or
securities in the consolidation or merger (or of its ultimate parent
corporation, if any), (B) the consummation of 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 (C) the shareholders of the Company approve any plan or
proposal for the liquidation or dissolution of the Company; or
(ii) individuals who, as of the date hereof,
constitute the entire Board of Directors of the Company (the "Incumbent
Directors") cease for any reason to constitute at least fifty percent (50%) of
the Board of Directors of the Company, provided that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least a
majority of the then Incumbent Directors shall be, for purposes of this
Agreement, considered as though such individual were an Incumbent Director.
12. Choice of Law; Enforceability; Waiver of Jury Trial.
The Executive acknowledges that a substantial portion of the Company's
business is based out of and directed from the State of Connecticut. The
Executive also acknowledges that during the course of the Executive's employment
with the Company, the Executive will have substantial contacts with Connecticut.
This Agreement shall be deemed to have been made in the State of
Connecticut, shall take effect as an instrument under seal within Connecticut,
and the validity, interpretation and performance of this Agreement shall be
governed by, and construed in accordance with, the internal law of the State of
Connecticut, without giving effect to conflict of law principles. Both parties
further acknowledge that the last act necessary to render this Agreement
enforceable is its
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execution by the Company in Connecticut, and that the Agreement thereafter shall
be maintained in Connecticut. Both parties agree that any action, demand, claim
or counterclaim relating to the terms and provisions of Sections 4, 5, 6 and 7
of this Agreement, or to their breach, shall be commenced in Connecticut in a
court of competent jurisdiction. Both parties further acknowledge that venue for
such action, demand or counterclaim shall lie exclusively in Connecticut and
that material witnesses and documents would be located in Connecticut. Both
parties further agree that any such action, demand, claim or counterclaim shall
be resolved by a judge alone, and both parties hereby waive and forever renounce
the right to a trial before a civil jury.
13. Miscellaneous.
(a) Assignment. The Executive acknowledges and agrees that the rights
and obligations of the Company under this Agreement may be assigned by the
Company to any affiliates or successors in interest. The Executive further
acknowledges and agrees that this Agreement is personal to the Executive and
that the Executive may not assign any rights or obligations hereunder.
(b) Withholding. All payments required to be made by the Company to the
Executive under this Agreement shall be subject to withholding taxes, social
security and other payroll deductions in accordance with the Company's policies
applicable to employees of the Company at the Executive's level.
(c) Entire Agreement. This Agreement sets forth the entire agreement
between the parties and supersedes any prior communications, agreements and
understandings, whether written or oral including the offer letter dated
December 7, 2000 between the Company and the Executive.
(d) Seal and Governing Law. This Agreement shall take effect as an
instrument under seal and shall be governed by, and construed in accordance
with, the laws of the State of Connecticut, without regard to the conflicts of
law principles thereof.
(e) Amendments. Any attempted modification of this Agreement will not
be effective unless signed by a specifically authorized officer of the Company
and the Executive.
(f) Waiver of Breach. The Executive understands that a breach of any
provision of this Agreement may only be waived by a specifically authorized
officer of the Company. The waiver by the Company of a breach of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach.
(g) Severability. If any provision of this Agreement should, for any
reason, be held invalid or unenforceable in any respect by a court of competent
jurisdiction, then the remainder of this Agreement, and the application of such
provision in circumstances other than those as to which it is so declared
invalid or unenforceable, shall not be affected thereby, and each such provision
of this Agreement shall be valid and enforceable to the fullest extent permitted
by law.
(h) Notices. Any notices, requests, demands and other communications
provided for by this Agreement shall be in writing and shall be effective when
delivered by private messenger,
11
private overnight mail service, or facsimile as follows (or to such other
address as either party shall designate by notice in writing to the other in
accordance herewith):
If to the Company:
E-Sync Networks, Inc.
00 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn:
With a copy to:
Xxxxx X. Xxxxx, Esq.
Xxxx Xxxxx & Xxxxxxx LLP
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
(000) 000-0000
If to Executive:
Michael W.G. Fix
00 Xxxx 00xx Xxxxxx, Xxxxxxxxx X
Xxx Xxxx, XX 00000
(000) 000-0000 (mobile)
With a copy to:
Stanford X. Xxxxxxx, Xx., Esq.
Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
(000) 000-0000
(i) Survival. The Executive and the Company agree that certain
provisions of this Agreement shall survive the expiration or termination of this
Agreement and the termination of the Executive's employment with the Company.
Such provisions shall be limited to those within this Agreement which, by their
express and implied terms, obligate either party to perform beyond the
termination of the Executive's employment or termination of this Agreement.
(j) Disclosure and Confidentiality. The Executive agrees that the
Company may provide, in its discretion, a copy of the covenants contained in
this Agreement to any business or enterprise which the Company may directly or
indirectly own, manage, operate, finance, join, control or in which the Company
participates in the ownership, management, operation, financing or control, or
with which the Company may be connected or may become connected as an officer,
director, executive, partner, principal, agent, representative, consultant or
otherwise. The Executive also agrees that the Company may disclose a copy of
this Agreement if legally- required to do so, and in connection with a
partnering transaction, financing, or public offering. The Executive further
agrees not to disclose the existence or terms of this Agreement to any person
other than the Executive's immediate family and legal, financial or accounting
consultants.
(k) Reassignment. The Executive acknowledges and agrees that should the
Executive transfer between or among any affiliates of the Company, wherever
situated, or otherwise become
12
employed by any Company affiliate, or be promoted or reassigned to functions
other than the Executive's present functions, all terms of this Agreement shall
continue to apply with full force.
(l) Arbitration of Disputes. Any controversy or claim arising out of
this Agreement or any aspect of the Executive's relationship with the Company
(other than disputes with respect to alleged violations of the covenants
contained in Sections 4, 5, 6 or 7 hereof, and the Company's pursuit of the
remedies described in Section 8 hereof in connection therewith) shall be
adjudicated by arbitration in accordance with the then existing National Rules
for the Resolution of Employment Disputes of the American Arbitration
Association, and judgment upon the award rendered may be entered in any court
having jurisdiction thereof. The parties shall split equally the costs of
arbitration unless the arbitrator orders otherwise, or unless the parties agree
to allocate the costs differently. The parties agree that the award of the
arbitrator shall be final and binding.
(m) Rights of Other Individuals. This Agreement confers rights solely
on the Executive and the Company. This Agreement is not a benefit plan and
confers no rights on any individual or entity other than the undersigned.
(n) Headings. The parties acknowledge that the headings in this
Agreement are for convenience of reference only and shall not control or affect
the meaning or construction of this Agreement.
(o) Counterparts. This Agreement may be signed in counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement shall become effective
when each party hereto shall have received counterparts hereof signed by the
other party hereto.
(p) Legal Fees. The Company agrees to pay legal fees and expenses of
the Executive, not to exceed $10,000, in connection with the negotiation and
execution of this Agreement and the Option.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of the day and year set forth below.
MICHAEL W.G. FIX E-SYNC NETWORKS, INC.
/s/ Michael W.G. Fix By:/s/ Xxxxxxx X. Xxxxx
------------------------------ ----------------------------------
Michael W.G. Fix Name: Xxxxxxx X. Xxxxx
Title: President and COO
Dated: January 17, 2001 Dated: January 17, 2001
