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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 1st day of October, 1999, by and between E-SYNC
NETWORKS, INC. (FORMERLY WILTEK, INC.), a Connecticut corporation, with its
principal offices located at 00 Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 (the
"Company") and Xxxxx X. Xxxxxxxx, Xx. an individual, residing at 00 Xxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxxxx, 00000 (the "Employee").
W I T N E S S E T H:
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 shall have
the following meanings:
(a) "Company" shall mean and include E-Sync Networks, Inc. (formerly
Wiltek, Inc.), and of 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 E- Sync Networks, Inc. (formerly 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 non-public 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.
(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, belonging to
the Company.
(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.
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(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
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 Chief Financial
Officer and he shall perform such duties and render such services
consistent therewith as may from time to time be required of him by the CEO
of the Company.
4. Extent of Service. During the term of his employment, the Employee agrees
that (a) he will serve the Company faithfully, diligently and to the best
of his ability under the direction of the CEO 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 CEO 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 this
Agreement shall be for a period commencing on the date of this Agreement
and terminating on the 31st day of the month of December in the year 2000,
unless sooner terminated pursuant to Paragraph 9 of this Agreement (the
"Term"), and shall continue upon renewal of this Agreement for successive
one- year Terms thereafter unless sooner terminated pursuant to Paragraph 9
of this Agreement. With respect to each such successive Term, the Company
and the Employee shall mutually agree, in writing, to basic compensation
for such successive Term. If the Company decides not to renew this
Agreement, then the Employee shall be entitled severance pay pursuant to
Clause 9(b) of this Agreement.
6. Base Salary. As basic compensation for the services to be rendered
hereunder by the Employee for the initial Term ("Base Salary"), the Company
agrees to pay to the Employee, and the Employee agrees to accept, a minimum
salary at the rate of $200,000 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.
7. Other Benefits. The Employee shall be entitled to participate in any
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
compensation (less any payments received from Worker's Compensation, E-Sync
Network's (formerly 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
E-Sync Networks (formerly Wiltek) shall be obligated to pay such
compensation shall be ninety (90) days. Disability means the inability of
Employee to perform his duties hereunder on account of mental or physical
illness or physical incapacity.
9. Termination.
(a) The employment of the Employee hereunder shall terminate immediately
(i) upon the
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death of the Employee and, (ii) upon written notice to the Employee,
at the option of the Company, in the event that the Employee breaches
any of the terms and conditions of this Agreement.
(b) 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 (i) pay the Employee severance pay in accordance with
the next sentence, (ii) continue the benefits set forth in Item 2 of
the attached "Schedule of Benefits" for so long as the severance
payments are being made, and (iii) continue the benefit set forth in
Item 1 of the attached Schedule of Benefits for two (2) months after
termination. During the six-month period following termination of the
employment of the Employee hereunder, the Company shall pay the
Employee guaranteed severance pay at a rate equal to the Employee's
base compensation immediately prior to such termination. 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. If the Employee is not employed upon
the expiration of the six-month guaranteed severance pay period, the
Company shall pay the Employee no additional supplemental severance
pay.
10. Representations and Warranties of the Employee as to Conflicts. 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
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 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
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right, title and interest thereto in the Company; and
(d) 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.
(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.
13. Non-Compete. The Employee agrees that, during the term of his 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
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 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.
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16. Withholding. The Employee hereby agrees that he will make such 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 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 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 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 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.
21. Successors and Assigns. This Agreement shall be binding upon and 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
enforced in accordance with the laws of the State of Connecticut.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
E-SYNC NETWORKS, INC.
(FORMERLY WILTEK, INC.)
By: /s/ Xxxx X. Xxxxxxx, III
______________________________
CEO & Chairman of the Board
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
______________________________
Xxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer
WITNESS:
/s/ Xxxxx X. Xxxxxxx
________________________________
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SCHEDULE OF BENEFITS
1. Company Car. Company obligation is direct payment of, or reimbursement to
the Employee, for all lease payments, tax payments, insurance payments,
gasoline payments, service payments, repair payments, maintenance payments.
The Company will contribute a maximum of $600 towards monthly lease and
property tax payments. This benefit will continue for two (2) months after
termination.
2. Company Standard Benefits. Health, major medical, dental, orthodontia, eye
care, 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. All company standard
benefits will continue during the severance period(s) with the exception of
short and long-term disability benefits.
3. Annual Minimum Base Salary. $200,000.
4. Bonus: On an annual basis the E-Sync Networks (formerly Wiltek) Board of
Directors will review all Officer compensation including a bonus program
which, will be based upon attainment of Company objectives. Based on
attainment of objectives you will be eligible for a $25,000 pro-rated
annual bonus.
5. Guaranteed Severance Pay. Six (6) months of Annual Minimum Base Salary.
6. Company Stock Options: Upon approval by the E-Sync Networks (formerly
Wiltek) Board of Directors Compensation Committee, 80,000 options,
representing approximately 2% of the outstanding common stock, will be
granted to the employee. In accordance with Board approval, the employee
will be issued 20,000 fully vested options upon actual start date. The
remaining 60,000 stock options will vest in increments over a three (3)
year period, to be determined by the Board of Directors. Options will
provide for accelerated vesting in the event of certain "Change of Control"
transactions. The Employee's stock option price will be set at the market
value on the Employee's actual start date with the Company.
IN WITNESS WHEREOF, the parties have executed this Schedule of Benefits as of
the date first above written.
E-SYNC NETWORKS, INC.
(FORMERLY WILTEK, INC.)
By: /s/ Xxxx X. Xxxxxxx, III
______________________________
CEO & Chairman of the Board
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
______________________________
Xxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer
WITNESS:
/s/ Xxxxx X. Xxxxxxx
____________________________
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