Exhibit 10.1
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 1st day of January, 1999, by and between WILTEK,
INC., a Connecticut corporation, with its principal offices located at 000
Xxxxxxxx Xxxxxx, Xxxxxxx XX 00000 (the "Company") and Xxxxx X. Xxxxxxxxx, an
individual, residing at 00 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 (the
"Employee").
W I T N E S S E T H:
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WHEREAS, the Company desires that the Employee shall be employed by the
Company, and the Employee is desirous of such employment, upon the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, the parties hereto agree as follows:
1. Defining Terms. As used in this Agreement, the following terms
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shall have the following meanings:
(a) "Company" shall mean and include Wiltek, Inc., and its
parents, subsidiaries and affiliates and the respective
successors and assigns of any of them, whether now
existing or hereafter arising: provided, however, that
references to the Company in Paragraphs 6, 7 and 9 of
this Agreement shall be limited solely to Wiltek, Inc.
(b) "Customer" shall mean any individual, firm, partnership,
corporation, company, joint venture or governmental or
military unit or any other entity or any parent,
subsidiary or affiliate of any of them which is
negotiating or has a contract with the Company for the
purchase or lease of the Company's equipment, products
or services or which has been solicited by the Company
with respect to such purchase or lease during the
Employee's employment with the Company.
(c) "Confidential Information" shall mean information
concerning the Company, its products, processes and
services and its customers, suppliers, contractors,
agents, consultants and employees (herein-after referred
to as "Company Affiliates"), including, but not limited
to, information relating to research, development.
inventions, manufacture, purchasing, accounting,
finances, costs, profit margins, patents, methods,
programs, apparatus, engineering, marketing,
merchandising, selling, Customer lists, Customer
requirements and personnel, pricing, pricing methods and
data processing and any other materials or information,
heretofore or hereafter during the term of this
Agreement, conceived, designed, created, used or
developed by or relating to the Company or any of the
Company Affiliates; provided, however, that Confidential
Information shall not include any information which may
be in the public domain or come into the public domain
not as a result of a breach by the Employee of any of
the terms and provisions of this Agreement.
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(d) "Proprietary Property" shall mean discoveries, concepts
and ideas and expressions thereof, whether or not
subject to patent, copyright, trademark, trade name or
service xxxx protection, including, but not limited to,
software, services, processes, methods, formulae,
techniques, apparatus, designs and writings as well as
improvements thereon, revisions thereof and know-how
related thereto, concerning any present or future
activities of the Company; provided, however, that
Proprietary Property shall not include anything which
may be in the public domain or come into the public
domain not as a result of a breach by the Employee of
any of the terms and provisions of this Agreement.
(e) "Competing Product" shall mean any product, process or
service of any person or legal entity other than the
Company, in existence or under development, which,
during the term of this Agreement, competes with or is
an alternative to any present or future product,
process, or service of the Company whether or not
actively marketed by the Company.
(f) "Competing Organization" shall mean any person or legal
entity engaged in, about to engage in or intending to
engage in research on or development, use, production,
marketing, or selling of a Competing Product.
2. Employment. The Company hereby employs the Employee, and the Employee
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hereby accepts such employment, upon the terms and conditions set forth in this
Agreement.
3. Duties. The Employee shall be employed by the Company as President
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and he shall perform such duties and render such services consistent therewith
as may from time to time be required of him by the Board of Directors of the
Company or the Chairman of the Company.
4. Extent of Service. During the term of his employment, the Employee
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agrees that (a) he will serve the Company faithfully, diligently and to the best
of his ability under the direction of the Chairman or the Board of Directors of
the Company; (b) he will devote his best efforts and substantially his entire
working time, attention and energy to the performance of his duties hereunder
and to promoting and furthering the interests of the Company, taking, however,
from time to time, reasonable vacations consistent with the performance of his
obligations hereunder, and (c) he will not, without the prior written approval
of the Board of Directors of the Company, which approval shall not be
unreasonably withheld, become an officer, director, employee or consultant of,
or otherwise become associated with or engaged in, any business other than that
of the Company, and he will do nothing inconsistent with his duties to the
Company.
5. Terms of Employment. The term of employment of the Employee under
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this Agreement shall be for a period commencing on the date of this Agreement
and terminating twelve (12) months thereafter, unless sooner terminated pursuant
to Paragraph 9 of this Agreement (the "Term"), and for successive one-year Terms
thereafter; provided, however, that with respect to each such successive Term,
the Company and the Employee shall have mutually agreed, in writing, to basic
compensation for such successive Term. If the Company decides not to renew the
Employee's Employment Agreement, then the Employee shall be entitled to the
termination provisions provided for in Clause 9(b) of this Employment Agreement.
6. Basic Compensation. As basic compensation for the services to be
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rendered hereunder by the Employee for the initial Term, the Company agrees to
pay to the Employee, and the Employee agrees to accept, a minimum salary at the
rate of $168,000 per annum. The salary payable to the Employee hereunder shall
be paid in equal semi-monthly installments during the Term, or in such other
manner as shall be mutually agreed upon by the parties hereto.
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7. Other Benefits. The Employee shall be entitled to participate in any
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retirement, disability, profit-sharing, medical or life insurance or other
similar plan or arrangement provided by the Company to its employees, or its
other executive employees. The Employee shall also receive benefits as stated
within the attached "Schedule of Benefits."
8. Disability. If Employee shall be disabled, he shall receive full
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compensation (less any payments received from Worker's Compensation, Wiltek's
disability plans or other governmental payment for such disability) for all
periods of disability even if a period of disability extends beyond the Term;
provided, however, that the maximum number of consecutive days during which
disability occurs and for which Wiltek shall be obligated to pay such
compensation shall be one-hundred-and-eighty (180) days. Disability means the
inability of Employee to perform his duties hereunder on account of mental or
physical illness or physical incapacity.
9. Termination.
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(a) The employment of the Employee hereunder shall terminate in
the event of the death of the Employee and, at the option of
the Company, upon written notice to the Employee, (i) in the
event that Base Salary payments are terminated due to
disability pursuant to Paragraph 8 of this Agreement, or (ii)
in the event that the Employee shall breach any of the terms
and provisions of this Agreement.
(e) In addition to the provisions of Paragraph 9(a) above, the
Company may also, in its sole discretion, elect to terminate,
without cause, the employment of the Employee hereunder by
thirty (30) days prior written notice to the Employee;
provided, however, that if the Company shall so terminate this
Agreement pursuant to this Paragraph 9(b), the Company shall
pay the Employee guaranteed severance pay in accordance with
the next sentence, continue the benefits set forth in Item 4
of the attached "Schedule of Benefits" for so long as the
severance payments are being made, will continue the benefit
set forth in Item 1 thereof for the terms thereof and will pay
the bonuses set forth in Items 8 and 9 thereof per their
respective terms. During the twelve-month period following the
receipt of written notice by the Employee, the Company shall
pay the Employee guaranteed severance pay at a rate equal to
the Employee's base compensation immediately prior to such
termination and such guaranteed severance pay shall be paid to
the Employee in the manner and at the time or times that such
base compensation would otherwise have been paid to the
Employee. Following the twelve-month guaranteed severance pay
period, if the Employee does not become employed, the Company
shall pay the Employee additional supplemental severance pay
in accordance with the next sentence. During the six-month
period following the conclusion of Company payment to the
Employee of twelve months of guaranteed severance pay, the
Company shall pay the Employee additional supplemental
severance pay at a rate equal to the Employee's base
compensation immediately prior to such termination and such
additional supplemental severance pay shall be paid to the
Employee in the manner and at the time or times that such base
compensation would otherwise have been paid to the Employee.
10. Representations and Warranties of the Employee as to Conflicts.
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The Employee hereby represents and warrants to the Company that his employment
by the Company does not and will not violate any provision of law or fiduciary
duty by which he is bound and will not conflict with or result in a breach of
any agreement or instrument to which he is a party or by which he is bound, and
the Employee agrees that he will indemnify and hold harmless the Company, its
directors, officers and employees against any claims, damages, liabilities and
expenses (including attorneys' fees) which may be incurred, including amounts
paid in settlement, by any of them in connection with any claim based upon or
related to a breach of the Employee's representation and warranty set forth in
this Paragraph. In the event of any claim based upon or related to a breach of
the Employee's representation and warranty set forth in this Paragraph 10, the
Company will give prompt notice thereof, in writing, to the Employee and the
Employee shall have the right to defend such claim with counsel reasonably
satisfactory to the Company.
11. Proprietary Property. With respect to Proprietary Property made or
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conceived by the Employee in the field of data communications, whether or not
during the hours of his employment or with the use of the Company's facilities,
materials or
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personnel, either individually or jointly with others during the period of his
employment by the Company, the Employee shall, without the payment of royalty or
any other considerations to him therefor:
(a) Inform the Company promptly and fully of such Proprietary
Property by a written report satisfactory to the Company;
(b) Apply, at the Company's requests and expense, for United
States and foreign letters patent, copyright, trademark or
service xxxx, as the case may be, either in the Employee's
name or otherwise as the Company shall direct;
(c) Assign to the Company all of his right, title and interest
in such Proprietary Property, and to applications for United
States and/or foreign letters patent, copyright, trademark
and service xxxx and to any letters patent, copyright,
trademark and service xxxx which may be issued upon such
Proprietary Property;
(d) Deliver promptly to the Company, without charge to the
Company but at its expense, such written instruments, and do
such other acts, as may be necessary, in the opinion of the
Company, to obtain and maintain United States and/or foreign
letters patent, copyright, trademark or service xxxx on the
Proprietary Property and to vest the entire right, title and
interest thereto in the Company; and
(e) Grant to the Company, prior to assignment of the Employee's
right title and interest to the Company in any Proprietary
Property as required above, the royalty-free right to use in
its business, and to make, have made, use and sell products,
processes, services, writings and/or marks based upon or
related to Proprietary Property made or conceived by the
Employee.
12. Confidentiality.
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(a) During the Term and at all times thereafter, the Employee
will not use Confidential Information for his own benefit or
for the benefit of any person or legal entity other than the
Company nor will he disclose the same to any other person or
legal entity, except as required to conduct the business of
the Company in the ordinary course.
(b) Except with the prior written approval of the Company or
except as required to conduct the business of the Company in
the ordinary course, the Employee will not, at any time,
directly or indirectly, use, disseminate, disclose, lecture
upon or publish articles concerning any Confidential
Information.
(c) Upon the termination of his employment with the Company, all
documents, records, notebooks and similar repositories of or
containing Confidential Information, including any copies
thereof, then in the Employee's possession, or under his
control, whether prepared by him or others, will be left
with or immediately returned to the Company by the Employee.
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13. Non-Compete. The Employee agrees that, during the term of his
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employment with the Company and also for one year following the Employee's
termination or departure from the Company he will not, without the written
approval of the Company, directly or indirectly, under any circumstances
whatsoever, own, manage, operate, engage in, control or participate in the
ownership, management, operation or control of, or be connected in any manner
with, whether as an individual, partner, stockholder, director, officer,
principal, agent, employee or consultant, or in any other relation or capacity
whatsoever, any Competing Organization, and will not in any such manner compete
with the Company or solicit or call on any Customer of the Company, wherever
located, which was a Customer of the Company at any time during the period one
(1 year prior to the termination of the Employee's employment with the Company
for the purpose of inducing such Customer to purchase or lease a Competing
Product. Notwithstanding the foregoing, nothing contained in this Paragraph 13
shall restrict the Employee from making any investment in any company whose
stock is listed on a national securities exchange or actively traded in the
over-the-counter market, so long as such investment does not give him the right
to control or influence the policy decisions of any such business or enterprise
which is or might be in competition with any business of the Company.
14. Non-Interference. The Employee will not, for a period of one (1) year
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following the termination of the Employee's employment by the Company, directly
or indirectly, employ, hire, solicit or, in any manner, encourage any employee
of the Company to leave the employ of the Company.
15. Injunctive Relief. In addition to any other rights or remedies
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available to the Company as a result of the breach of the Employee's obligations
hereunder, the Company shall be entitled to enforcement of such obligations by
an injunction or a decree of specific performance from a court with appropriate
jurisdiction and in the event that the Company is successful in any suit or
proceeding brought or instituted by the Company to enforce any of the provisions
of this Agreement or on account of any damages sustained by the Company by
reason of the violation by the Employee of any of the terms and/or provisions of
this Agreement to be performed by the Employee, the Employee agrees to pay to
the Company all attorneys' fees reasonably incurred by the Company.
16. Withholding. The Employee hereby agrees that he will make such
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arrangements as the Company may deem necessary to discharge any obligations of
the Company to withhold Federal, state or local taxes imposed upon the Company
in respect of this Agreement.
17. Severability. The provisions of this Agreement shall be severable
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and if any part of any provision shall be held invalid or unenforceable or any
separate covenant contained in any provision is held to be unduly restrictive
and void by a final decision of any court or other tribunal of competent
jurisdiction, such part, covenant or provision shall be construed to give it
maximum lawful validity and the remaining provisions of this Agreement shall
nonetheless remain in full force and effect.
18. Entire Agreement. This Agreement and the attached "Schedule of
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Benefits" contains the entire agreement of the parties relative to the subject
matter hereof, superseding and terminating all prior agreements or
understandings, whether oral or written, between the parties hereto relative to
the subject matter hereof, and this Agreement may not be extended, amended,
modified or supplemented without the written consent of the parties hereto.
19. Waivers. Any waiver of the performance of the terms or provisions of
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this Agreement shall be effective only if in writing and signed by the party
against whom such waiver is to be enforced. The failure of either party to
exercise any of his or its rights under this Agreement or to require the
performance of any term or provision of this Agreement, or the waiver by either
party of any breach of this Agreement, shall not prevent a subsequent exercise
or enforcement of such rights or be deemed a waiver of any subsequent breach of
the same or any other term or provision of this Agreement.
20. Notices. Any notice required or permitted to be given under this
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Agreement shall be in writing and shall be deemed given when personally
delivered or sent by registered or certified mail, postage prepaid, return
receipt requested, to the respective address of the parties hereto as set forth
above or to such other address as either party may designate to the other party
in the manner provided herein for giving notice.
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21. Successors and Assigns. This Agreement shall be binding upon and
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inure to the benefit of the heirs, executors, administrators, successors and
legal representatives of the Employee, and shall inure to the benefit of and be
binding upon the Company and any successor to the business of the Company
pursuant to a merger or acquisition of all or substantially all of its assets,
but the obligations of the Employee may not be delegated and the Employee may
not assign, transfer, pledge, encumber, hypothecate or otherwise dispose of this
Agreement, or any of his rights hereunder (whether by operation of law or
otherwise), except as expressly permitted by this Agreement, and any such
attempted delegation or disposition shall be null and void and without effect.
22. Governing Law. This Agreement shall be governed by and construed and
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enforced in accordance with the laws of the State of Connecticut.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
WILTEK, INC.
By: /s/ Xxx X. Xxxxxxxxxxx
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Chairman of the Board
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
President & CEO
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Schedule of Benefits
1. Company Car. Company obligation is direct payment of, or reimbursement to
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the Employee, for all lease payments, tax payments, insurance payments,
gasoline payments, service payments, repair payments, maintenance payments.
This benefit will continue for two (2) months after termination.
2. Complete Annual Physical Examination. Company obligation is reimbursement
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to the Employee for the cost of any fees or charges not covered under the
Company's standard health insurance plan. This benefit is eliminated upon
termination.
3. Disability Policy. Company obligation is reimbursement to the Employee for
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the cost of the Employee maintaining a long-term disability insurance policy
providing up to 70% of Annual Minimum Base Salary. This benefit is eliminated
upon termination.
4. Company Standard Benefits. Health, major medical, dental, eye care,
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orthodontia, life insurance, short-term disability, long-term disability,
401K contribution, in addition to individual benefits provided within this
section ("Schedule of Benefits") to the Employee.
5. Annual Minimum Base Salary. $168,000.
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6. Guaranteed Severance Pay. Twelve (12) months of Annual Minimum Base Salary.
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7. Supplemental Severance Pay. If employment not found by Employee following
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Guaranteed Severance Pay Period, an additional six (6) months of Annual
Minimum Base Salary.
8. Consulting Division Sale Bonus. Ten percent (10%) of the selling price of
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the consulting division paid by the Company and allocated by the Employee to
himself, other officers and other employees. The Company's obligation remains
until the latter of December 31, 1999 or three (3) months after termination.
The Company shall make full payment within five (5) business days of
consulting division selling transaction.
9. Revenue Bonus. If Wiltek reports fiscal year 1999 revenue (excluding any
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revenue for business's acquired after January 1, 1999) of at least
$6,800,000 then a cash bonus of .60% of total fiscal year 1999 revenue
$7,000,000 then a cash bonus of .64% of total fiscal year 1999 revenue
$7,200,000 then a cash bonus of .68% of total fiscal year 1999 revenue
$7,400,000 then a cash bonus of .72% of total fiscal year 1999 revenue
$7,600,000 then a cash bonus of .76% of total fiscal year 1999 revenue
$7,800,000 then a cash bonus of .80% of total fiscal year 1999 revenue
$8,000,000 then a cash bonus of .84% of total fiscal year 1999 revenue
$8,200,000 then a cash bonus of .88% of total fiscal year 1999 revenue
$8,400,000 then a cash bonus of .92% of total fiscal year 1999 revenue
$8,600,000 then a cash bonus of .96% of total fiscal year 1999 revenue
$8,800,000 then a cash bonus of 1.00% of total fiscal year 1999 revenue
The Company shall make full cash bonus payment to Employee within 60 days
(December 30, 1999) of close of fiscal year 1999. In the event of termination
any bonus accumulated as of the date of termination will be payable by the
Company to the Employee within 30 days of termination.
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IN WITNESS WHEREOF, the parties have executed this Schedule of Benefits as
of the date first above written.
WILTEK, INC.
By: /s/ Xxx X. Xxxxxxxxxxx
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Chairman of the Board
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
President & CEO
WITNESS:
/s/ Xxxxx Xxxxxxx
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