EMPLOYMENT AGREEMENT
Exhibit
10.1
This Employment Agreement is made as of
the 1st day of
January, 2007, by and between Nasus Consulting, Inc., a Massachusetts
corporation with its principal place of business at 00 Xxxxxx Xxxxxx, Xxxxxxxxx,
XX 00000 (the "Company"), and Xxxxxxx X. Xxxxxxxxx, residing at 00
Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 (the "Employee").
In consideration of the mutual promises
contained in this Agreement, the parties agree as follows:
1. Titles and
Responsibilities. The Company employs the Employee, and the
Employee accepts employment, as President, Treasurer and Secretary of the
Company. The Employee shall be directly responsible for management of
all business operations and setting of overall corporate
strategy. Subject to the general direction and control of the Board
of Directors of the Company (the "Board"), the Employee agrees to devote his
full time and best efforts to his duties and responsibilities for the
Company. The Employee shall report directly to the
Board.
2. Term. The
term of this Agreement shall be deemed to have commenced as of the date hereof
and, subject to the provisions of Section 12 of this Agreement, shall continue
in full force and effect until December 31, 2009.
3. Base
Salary. During the term of this Agreement, the Employee shall
be entitled to receive base salary at the rate of $240,000 per year, payable not
less than monthly in arrears, commencing January, 2007. The Company
may, but shall not be obligated to, increase the Employee's base salary in any
year.
4. Bonuses. In
addition to the base salary described in Section 3, during the term of this
Agreement, the Employee may be entitled in each calendar year to receive a cash
bonus, stock options and/or such other bonuses, in such amounts and on such
terms as the Board or the Compensation Committee of the Board (the "Compensation
Committee") may determine. In the event of the termination of the
employment of the Employee for (i) any reason other than Cause or (ii) by reason
of Constructive Discharge, the Employee shall be entitled to receive an amount
equal to the bonus which would otherwise have been payable to the Employee under
any established Company incentive plans, if any, in effect at the time in
respect of the year during which such termination occurs, pro rated for the
portion of the year in which such termination occurs.
5. Employee
Benefits. The Employee shall have the right to participate in
all benefit plans and programs generally made available to executives of the
Company, including without limitation health, dental, life, and disability
insurance, vacation programs, retirement plans, employee stock plans or benefits
and profit sharing plans.
6. Reimbursement of
Expenses. The Company shall reimburse the Employee for all
reasonable and necessary expenses incurred by him in the performance of his
duties hereunder, following his appropriate substantiation thereof, in each case
in accordance with the Company's policies as in effect from time to
time.
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7. Outside
Consulting. With prior notification to the Compensation
Committee, the Employee may provide consulting services to third
parties. The Employee may serve as a consultant in any field which
does not directly compete with the Company, provided, that in no
event shall such proposed consulting interfere with the operations of the
Company or the performance of the Employee's duties under this Agreement more
particularly described in Section 1 hereof. If the Compensation
Committee shall determine that any consulting activity engaged in by the
Employee is not permitted hereunder, the Compensation Committee shall provide
the Employee a written statement setting forth the basis for its
determination.
8. Severance and Other
Arrangements.
(a) Generally. In
the event of the termination of the employment of the Employee by the Company
without Cause, or by the Employee as the result of a Constructive Discharge, the
Company shall:
(i). Continue
to pay the Employee, in accordance with the Company's normal payroll practices
and policies in effect from time to time (including any required withholding),
his base salary at the monthly base salary rate in effect for such Employee
immediately prior to the termination of his employment) for a period of twelve
(12) months following the termination of the Employee's employment.
(ii). Provide
the Employee with health, dental, life and disability insurance substantially
similar to that which the Employee was receiving immediately prior to the
termination of his employment until the earlier of: (x) the date which is twelve
(12) months following the termination of the Employee’s employment; or (y) the
date the Employment begins receiving substantially similar insurance from a
subsequent employer. The end of the period during which severance is
paid, rather than the termination date of employment, will be deemed to be a
"qualifying event" which would entitle the Employee to acquire at his own
expense during the minimum election period permitted by the Consolidated Omnibus
Budget Reconciliation Act (commonly known as "COBRA") or such law as may then be
in effect continuation of coverage under the Company's health and benefit
plans.
(iii). Provide
that the Employee shall have three (3) years to exercise any then-exercisable,
unexpired installments of any stock options held by the Employee on the
Employee's last date of employment or if later, the date when the Employee
ceases to be a member of the Board.
(b) Disability. In
the event of any illness (mental or physical) or accident which renders the
Employee unable to perform his duties and responsibilities, the Company shall,
during the first 3 months of any such illness or after such accident, as the
case may be, continue to pay the Employee's base salary hereunder; and
thereafter, during any such period in excess of 3 months the Company shall
supplement any disability benefits which the Employee is entitled to receive
under the Company's disability plans then in effect, for a period of up to 9
additional months, in an amount such that, together with any amounts the
Employee is entitled to receive under such plans, the Employee shall receive an
aggregate amount equal to his base salary during such period.
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(c). Change of
Control. Upon a Change of Control, all stock options held by
the Employee shall vest and become immediately exercisable in full.
9. Non-competition. During
the term of this Agreement and thereafter the Employee will not directly or
indirectly, participant in any business that utilizes the Company's proprietary
information, know-how or trade secrets in any field of activity, including
specifically those fields that are competitive with the business of the Company,
nor will the Employee interfere with the contractual relations between the
Company and any of its employees or partners. The provisions of this
Section shall not prohibit the ownership of stock in any entity whose stock is
publicly traded or 5% or less of the outstanding stock of any entity whose stock
is not publicly traded.
10. Ownership of
Developments. The Employee agrees that any work or research,
or the result thereof including without limitation, inventions, processes,
formula, data, information, programs, systems, software or know-how (hereinafter
collectively "Proprietary Information") made, conceived or developed by
Employee, alone or in connection with others, prior to or during the term of his
employment under this Agreement, whether during or out of the usual hours of
employment, which are related to the business, research and development work
within the Company's Field of Operation are the sole and exclusive property of
the Company. The Employee agrees that he will fully assign the
foregoing to Company. The Employee further agrees to disclose all
Proprietary Information completely and in writing to the Board. To
the extent of the Employee's interest therein, all papers and records of every
kind, relating to Proprietary Information included within the terms of this
Agreement, which shall at any time come into the possession of the Employee
shall be the sole and exclusive property of the Company and shall be surrendered
to the Company upon termination of the Employee's employment by the Company or
upon the Company's request at any time either during or after the termination of
such employment.
11. Confidential
Information. Employee covenants and agrees with the Company
that Employee will not during or after the term of employment disclose to anyone
(except to the extent reasonably necessary for Employee to perform his duties
hereunder) any Proprietary Information or other confidential information
concerning the business or affairs of the Company or of any of its affiliates or
subsidiaries or any of their customers which Employee may have acquired in the
course of or as incident to Employee's employment or prior dealings with the
Company or with any of its affiliates, including without limitation, customers
lists, or business trade secrets of, or methods or techniques used by Employee
or any of its affiliates in or about their respective
business. Nothing contained in this paragraph shall impair or
restrict the right of Employee to use or disclose any information already in the
public domain.
12. Termination. Notwithstanding
the provisions of Section 2 of this Agreement, the Company shall have the right
to terminate the employment of the Employee for Cause or as a result of his
death or Permanent Disability, and the Employee shall have the right to
terminate his employment as the result of a Constructive Discharge, in each case
without violation of the terms of this Agreement.
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In no event shall the Company terminate
this Agreement without Cause, unless the Employee shall have been granted a
prior meeting with, and an opportunity to be heard by, the Board, and a majority
of the members of the Board shall have determined that the Employee has (i)
failed to fulfill his duties to the Company in a satisfactory manner or (ii)
engaged in conduct detrimental to the Company.
13. Certain
Definitions. For purposes of this Agreement, the following
terms shall have the meanings indicated:
"Cause" means (i) the deliberate
dishonesty of the Employee with respect to the Company or any subsidiary or
affiliate thereof; (ii) conviction of the Employee of a felony punishable
by imprisonment for more than one year or a fine of $100,000 or more; or
(iii) the willful failure of Employee to perform the material lawful duties
assigned to him under this Agreement as determined by the Board, which failure
the Employee shall not have substantially remedied within 30 days after
receiving written notice from the Company describing such failure in reasonable
detail.
"Change of Control" means (i) the sale,
lease, transfer or other disposition by the Company of all or substantially all
of its assets in a single transaction or a series of related transactions; (ii)
the merger or consolidation of the Company with another entity in which the
stockholders of the Company immediately prior to such merger or consolidation
hold less than 50% of the outstanding voting stock of the surviving or resulting
corporation immediately following such transaction; or (iii) the sale or
exchange (to or with any person or entity other than the Company) by the
stockholders of the Company of more than 50% of the outstanding voting stock of
the Company in a single transaction or series of related
transactions.
"Company's Field of Operation" means
all computer software and hardware consulting and development, including without
limitation as such relate to government authorities, and any additional products
or services developed, marketed, distributed, planned, sold or otherwise
provided by the Company from time to time prior to or during the term of this
Agreement.
"Constructive Discharge" means the
termination of employment by the Employee on the grounds that (a) there
has been a decrease in the total annual compensation payable by the Company to
the Employee, other than as a result of a material decrease in compensation
payable to the Employee and to all other employees of similar rank and stature
of the Company on the basis of the financial performance of the Company, provided, however, that nothing
contained herein shall be construed as giving the Company the right to decrease
the Employee's base salary specified in Section 3 hereof, (b) there has been a
Change of Control within the past twelve (12) months, or (c) the relocation of
the Company's business to a site more than twenty-five (25) miles from the
Employee's residence.
"Permanent Disability" means illness
(mental or physical) or accident which renders the Employee unable to perform
his duties and responsibilities for a period of six consecutive months or six
months in any twelve-month period, and which is confirmed to the Board as
continuing at the end of such period by expert medical
opinion. Nothing contained in this Agreement shall affect the right
of the Employee to receive long-term disability benefits under any long-term
disability insurance plan(s) of the Company then in effect.
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14. Miscellaneous.
(a) Notices. Any
notice hereunder shall be effective if delivered personally, by registered or
certified mail, return receipt requested, by overnight or special courier with a
signed receipt, or by facsimile where confirmation of receipt may be verified,
at the addresses set forth in the preamble to this Agreement or to any other
properly noticed address given by the parties to each other.
(b) Governing
Law. This Agreement shall be construed and governed by the law
of the Commonwealth of Massachusetts.
(c) Amendments. This
Agreement may not be modified or amended orally. All amendments shall
be in writing and signed by the Company and Employee.
(d) Assignments. This
Agreement may not be assigned in whole or in part by the
Employee. This Agreement may be assigned by the Company to any entity
acquiring or succeeding to control of ownership of the Company or substantially
all of the assets of the Company. This Agreement shall be binding
upon and inure to the benefit of the parties and to their permitted successors
and assigns.
(e) Entire
Agreement. This Agreement constitutes the entire understanding
of the parties with respect to its subject matter and supersedes any other
agreements between the parties with respect to such subject matter.
(f) Enforceability. If
any portion or provision of this Agreement shall to any extent be declared
illegal or unenforceable by a court of competent jurisdiction, then the
remainder of this Agreement, or the application of such portion or provision in
circumstances other than those as to which it is so declared illegal or
unenforceable, shall not be affected thereby, and each portion and provisions of
this Agreement shall be valid and enforceable to the fullest extent permitted by
law.
(g) Waiver. No
waiver of any provision hereof shall be effective unless made in writing and
signed by the waiving party. The failure of any party to require the
performance of any term or obligation of this Agreement, or the waiver by any
party of any breach of this Agreement, shall not prevent any subsequent
enforcement of such term or obligation or be deemed a waiver of any subsequent
breach.
(h) Arbitration. Any
controversy or claim which arises out of or relating to this Agreement, or the
breach thereof (other than controversies or
claims with regard to Sections 9, 10 or 11 of this Agreement), shall be settled
by arbitration in accordance with the Rules of the American Arbitration
Association then in effect. The controversy or claim shall be
submitted to three arbitrators, one of whom shall be chosen by the Employee, one
of whom shall be chosen by the Company, and one of whom shall be chosen by the
two so selected. The party desiring arbitration shall give written
notice to the other party of its desire to arbitrate the particular matter in
question, naming the arbitrator selected by it. If the other party
shall fail within a period of 15 days after such notice shall have been given to
reply in writing naming the arbitrator chosen as above provided, or if the two
arbitrators selected by the parties shall fail within 15 days after their
selection to agree upon the third arbitrator, then either party may apply to the
American Arbitration Association for the appointment of an arbitrator to fill
the place so remaining vacant. The decision of any two of the
arbitrators shall be final and binding upon the parties
hereto. Judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof.
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The proceedings shall be held in
Boston, Massachusetts. The arbitrators shall have no power to award
punitive or exemplary damages or to ignore or vary the terms of this Agreement,
and shall be bound to apply controlling law. Arbitration shall be
binding and the remedy for the settlement of the controversy or claims (except
as set forth in the preceding paragraph of this Section).
(i) Certain
Remedies. The restrictions contained in Sections 9, 10 and 11
of this Agreement are necessary for the protection of the business and goodwill
of the Company and are considered by the Employee to be reasonable for such
purpose. Without limiting the remedies available to the Company, the
Employee acknowledges that a breach of any of the covenants contained in any of
such Sections 9, 10 and 11 would result in irreparable injury to the Company for
which there might be no adequate remedy at law, and that, in the event of such a
breach or threat thereof, the Company shall be entitled to obtain a temporary
restraining order and/or such other equitable relief as may be required to
enforce specifically any of the covenants of such Sections 9, 10 and
11. The provisions of such Sections 9, 10 and 11 shall survive the
termination of this Agreement and shall continue thereafter indefinitely in full
force and effect in accordance with their respective terms.
IN WITNESS WHEREOF, the parties have
caused this Agreement to be executed as of the date and year first above
written.
By: _/s/ Xxxxxx X.
Tinio__________________________
Xxxxxx X. Xxxxx,
Director
Authorized Signatory
/s/ Xxxxxxx X.
Desjourdy_______________________________
Xxxxxxx X. Xxxxxxxxx
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