Exhibit 10.14
EMPLOYMENT AGREEMENT
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This Employment Agreement ("Agreement"), made this 31st day of
December, 1996, is entered into by and between Renaissance Solutions, Inc., a
Delaware corporation with its principal place of business at Lincoln North, 00
Xxx Xxxxxxx Xxxx, Xxxxxxx, XX 00000 (the "Company"), and O. Xxxxx Xxxxxx,
residing at 00 Xxxxxxxxxx Xxxxx, Xxxxxxx Farm, Greenwich, CT 06831 (the
"Employee").
Whereas, on December 31, 1996, the Company, Artist Acquisition Corp.,
a Connecticut corporation and a wholly-owned subsidiary of the Company (the
"Transitory Subsidiary"), International Systems Services Corporation, a
Connecticut corporation ("ISS"), and the Employee as the sole stockholder of
ISS, entered into an Agreement and Plan of Merger (the "Merger Agreement"),
pursuant to which the Transitory Subsidiary will merge with and into ISS, with
ISS surviving such merger; and
Whereas, in connection with the consummation of the transactions
contemplated by the Merger Agreement, the Company desires to employ the
Employee, and the Employee desires to be employed by the Company.
Now, therefore, in consideration of the mutual covenants and promises
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
agree as follows:
1. Term of Employment. The Company hereby agrees to employ the
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Employee, and the Employee hereby accepts employment with the Company, upon the
terms set forth in this Agreement, for the period commencing on the Closing
Date, as such term is defined in the Merger Agreement (the "Commencement Date"),
and ending on the fourth anniversary of the Commencement Date, unless sooner
terminated in accordance with the provisions of Section 4 (such period, as it
may be extended, the "Employment Period").
2. Title; Capacity. The Employee shall serve initially in such
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position as the Employee and the Company shall, promptly following the Closing
Date, determine, or in such other position as the Company or its Board of
Directors (the "Board") may from time to time determine. The Employee shall be
subject to the supervision of, and shall have such authority as is delegated to
him by, the Board or such officer or officers of the Company designated by the
Board.
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The Employee hereby accepts such employment and agrees to undertake
the duties and responsibilities inherent in such position and such other duties
and responsibilities as the Board or its designee shall from time to time
reasonably assign to him. The Employee agrees to devote his entire business
time, attention and energies to the business and interests of the Company during
the Employment Period; provided, however, that the Employee shall be free to
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participate in board, civic and charitable activities so long as such activities
do not interfere with his duties and responsibilities to the Company hereunder.
The Employee agrees to abide by the rules, regulations, instructions, personnel
practices and policies of the Company and any changes therein which may be
adopted from time to time by the Company.
3. Compensation and Benefits.
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3.1 Base Salary. The Company shall pay the Employee, at such times
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as the Company pays its employees in general, an annual base salary of $375,000
for the one-year period commencing on the Commencement Date. Such base salary
shall be subject to adjustment thereafter as determined by the Board; provided,
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however, that the Board shall not decrease the base salary during the Employment
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Period without the prior written consent of the Employee.
3.2 Annual Bonus. With respect to each year during the Employment
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Period, the Employee shall be eligible to receive a bonus of up to $125,000 (and
for years subsequent to the first year, such greater amount (if any) as shall be
determined by the Board) based upon such performance criteria as may be
determined in good faith by the Board. Such bonus shall be payable on or before
the 45th day of the year following the year in which such bonus is earned.
3.3 Fringe Benefits. The Employee shall be entitled to participate
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in all benefit programs that the Company establishes and makes available to its
employees, if any, to the extent that Employee's position, tenure, salary, age,
health and other qualifications make him eligible to participate.
3.4 Reimbursement of Expenses. The Company shall reimburse the
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Employee for all reasonable travel, entertainment and other expenses incurred or
paid by the Employee in connection with, or related to, the performance of his
duties, responsibilities or services under this Agreement, upon presentation by
the Employee of documentation, expense statements, vouchers and/or such other
supporting information as the Company may request; provided, however, that such
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travel, entertainment and other expenses shall be subject to limitation in
accordance with Company policy as in effect from time to time.
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4. Employment Termination. The employment of the Employee by the
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Company pursuant to this Agreement shall terminate upon the occurrence of any of
the following:
4.1 Expiration of the Employment Period in accordance with Section 1;
4.2 At the election of the Company, for cause, immediately upon
written notice by the Company to the Employee. For the purposes of this Section
4.2, cause for termination shall be deemed to exist upon (a) a good faith
finding by the Company of continual failure of the Employee to perform his
assigned duties for the Company, or dishonesty, gross negligence or willful
misconduct related to the performance of the Employee's duties for the Company;
(b) the conviction of the Employee of, or the entry of a pleading of guilty or
nolo contendere by the Employee to, any crime involving moral turpitude or any
felony; (c) Employee's habitual drunkenness, or the use, possession,
distribution or being under the influence of alcohol or illegal substances or
drugs in the workplace or in a manner otherwise affecting the Employee's
performance of his duties for the Company (the only exception is that the
Employee may consume alcohol reasonably and responsibly, if he so chooses, at
legitimate business events and functions where alcohol is legally available); or
(d) the material breach by the Employee of any terms of this Agreement, which
breach continues for 30 days subsequent to written notice from the Company to
the Employee of the breach (unless such breach is not susceptible to cure, in
which case termination shall be deemed to be immediate);
4.3 Upon the death or disability of the Employee. As used in this
Agreement, the term "disability" shall mean the inability of the Employee, due
to a physical or mental disability, for a period of 120 days, whether or not
consecutive, during any 360-day period to perform the services contemplated
under this Agreement. A determination of disability shall be made by a
physician satisfactory to both the Employee and the Company; provided that if
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the Employee and the Company do not agree on a physician, the Employee and the
Company shall each select a physician and such physicians together shall select
a third physician, whose determination as to disability shall be binding on all
parties; or
4.4 At the election of the Company or the Employee, upon not less
than 30 days' prior written notice of termination.
5. Effect of Termination.
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5.1 Termination for Cause or Voluntary Termination. In the event the
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Employee's employment is terminated by the Company for cause pursuant to Section
4.2, or by the Employee pursuant to Section 4.4, the Company shall pay to the
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Employee the compensation and benefits which would otherwise be payable to him
through the last day of his actual employment by the Company.
5.2 Termination for Death or Disability. If the Employee's
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employment is terminated by death or because of disability pursuant to Section
4.3, the Company shall pay to the estate of the Employee or to the Employee, as
the case may be, the compensation and benefits which would otherwise be payable
to the Employee through the date of his termination of employment because of
death or disability.
5.3 Termination Without Cause. If the Employee's employment is
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terminated at the election of the Company pursuant to Section 4.4, the Company
shall pay to the Employee the base salary and benefits payable to him under
Section 3, at the times provided in Section 3, including the pro rata portion of
any bonuses earned under Section 3.2 during the then current one-year period of
the Employment Period, through the day immediately prior to the one-year
anniversary of the date of his termination of employment.
5.4 Survival. The provisions of Sections 5 and 6 shall survive the
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termination of this Agreement.
6. Non-competition and Non-Solicitation
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6.1 Non-competition. During the Non-Competition Period (as defined
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below) the Employee will not directly or indirectly:
(A) as an individual proprietor, partner, stockholder, officer,
employee, director, joint venturer, investor, lender, consultant, or
in any other capacity whatsoever (other than as the holder of not more
than one percent of the combined voting power of the outstanding stock
of a publicly held company), develop, design, produce, market, sell or
render (or assist any other person in developing, designing,
producing, marketing, selling or rendering) products or services
competitive with those developed, designed, produced, marketed, sold
or rendered by the Company or any subsidiary of the Company (whether
existing now or hereafter acquired or established) (a "Subsidiary")
while the Employee was employed by the Company; provided, however,
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that nothing herein shall prohibit the Employee from holding up to 3%
of the publicly-traded securities of any corporation; or
(B) solicit, divert or take away, or attempt to divert or to take
away, the business or patronage of any of the clients, customers or
accounts, or prospective clients, customers or accounts, of the
Company
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or any of its Subsidiaries which were contracted, solicited or served
by the Employee while employed by the Company.
The term Non-Competition Period means the period of time commencing on
the Commencement Date and ending on (a) the first anniversary of the termination
or cessation of the Employee's employment, if such termination or cessation
occurs under Sections 4.1 or 4.3 or under Section 4.4 at the election of the
Company, and (b) the later of (i) the fourth anniversary of the Commencement
Date, and (ii) the first anniversary of the termination or cessation of the
Employee's employment, if such termination or cessation occurs under Section 4.2
or under Section 4.4 at the election of the Employee.
6.2 Non-solicitation. While the Employee is employed by the Company
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and for a period of one year after the termination or cessation of such
employment for any reason, the Employee will not directly or indirectly recruit,
solicit or hire or otherwise retain the services of any employee of the Company
or of any of its Subsidiaries, or induce or attempt to induce any employee of
the Company or any of its Subsidiaries to terminate his/her employment with, or
otherwise cease his/her relationship with, the Company or such Subsidiary.
6.3 Interpretation. If any restriction set forth in Sections 6.1 or
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6.2 is found by any court of competent jurisdiction to be unenforceable because
it extends for too long a period of time or over too great a range of activities
or in too broad a geographic area, it shall be interpreted to extend only over
the maximum period of time, range of activities or geographic area as to which
it may be enforceable.
6.4 Equitable Remedies. The restrictions contained in this Section 6
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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. The Employee
agrees that any breach of this Section 6 is likely to cause the Company
substantial and irrevocable damage and therefore, in the event of any such
breach, the Employee agrees that the Company, in addition to such other remedies
which may be available, shall be entitled to specific performance and other
injunctive relief.
7. Proprietary Information and Developments. Concurrently with the
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execution of this Agreement, the Employee shall enter into an Invention and Non-
disclosure Agreement, a copy of which is attached hereto as Exhibit B (the "Non-
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disclosure Agreement").
8. Notices. All notices required or permitted under this Agreement
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shall be in writing and shall be deemed effective upon personal delivery or upon
deposit in the United States Post Office, by registered or certified mail,
postage prepaid, addressed to the other party at the address shown above, or at
such other address or
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addresses as either party shall designate to the other in accordance with this
Section 8.
9. Pronouns. Whenever the context may require, any pronouns used in this
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Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural, and vice
versa.
10. Entire Agreement. This Agreement, together with the Non-disclosure
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Agreement, constitutes the entire agreement between the parties and supersedes
all prior agreements and understandings, whether written or oral, relating to
the subject matter of this Agreement.
11. Amendment. This Agreement may be amended or modified only by a written
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instrument executed by all of the parties hereto.
12. Governing Law. This Agreement shall be construed, interpreted and
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enforced in accordance with the internal laws (and not the law of conflicts) of
the Commonwealth of Massachusetts.
13. Successors and Assigns. This Agreement shall be binding upon and inure
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to the benefit of all of the parties hereto and their respective successors and
assigns, including any corporation with which or into which the Company may be
merged or which may succeed to its respective assets or business; provided,
however, that the obligations of the Employee are personal and shall not be
assigned by him.
14. Severability. The invalidly or unenforceability of any provision of
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this Agreement shall not affect the validly or enforceability of any other
provision of this Agreement.
15. Miscellaneous.
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15.1 No delay or omission by the Company in exercising any right
under this Agreement shall operate as a waiver of that or any other right. A
waiver or consent given by the Company on any one occasion shall be effective
only in that instance and shall not be construed as a bar or waiver of any right
on any other occasion.
15.2 The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
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15.3 In case any provision of this Agreement shall be invalid,
illegal or otherwise unenforceable, the validity, legality and enforceability of
the remaining provisions shall in no way be affected or impaired thereby.
15.4 This Agreement shall become effective upon the Closing Date (as
such term is defined in the Merger Agreement) and shall be of no force and
effect if the Merger Agreement is terminated in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year set forth above.
RENAISSANCE SOLUTIONS, INC.
By: /s/ Xxxxxx X. XxXxxxxx
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Name: Xxxxxx X. XxXxxxxx
Title: Vice President, Chief Fiancial Officer
and Chief Operating Officer
/s/ O. Xxxxx Xxxxxx
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O. Xxxxx Xxxxxx
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Exhibit B
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INVENTION AND NON-DISCLOSURE AGREEMENT
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This Agreement is made between BUYER, a Delaware corporation (hereinafter
referred to collectively with its subsidiaries as the "Company"), and O. Xxxxx
Xxxxxx (the "Employee").
In consideration of the employment or the continued employment of the
Employee by the Company, the Company and the Employee agree as follows:
1. Proprietary Information.
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(a) The Employee agrees that all information, whether or not in writing,
of a private, secret or confidential nature concerning the Company's business,
business relationships or financial affairs (collectively, "Proprietary
Information") is and shall be the exclusive property of the Company. By way of
illustration, but not limitation, Proprietary Information may include
inventions, products, processes, methods, techniques, formulas, compositions,
compounds, projects, developments, plans, research data, clinical data,
financial data, personnel data, computer programs, customer and supplier lists,
and contacts at or knowledge of customers or prospective customers of the
Company. The Employee will not disclose any Proprietary Information to any
person or entity other than employees of the Company or use the same for any
purposes (other than in the performance of his duties as an employee of the
Company) without written approval by an officer of the Company, either during or
after his employment with the Company, unless and until such Proprietary
Information has become public knowledge without fault by the Employee.
(b) The Employee agrees that all files, letters, memoranda, reports,
records, data, sketches, drawings, laboratory notebooks, program listings, or
other written, photographic, or other tangible material containing Proprietary
Information, whether created by the Employee or others, which shall come into
his custody or possession, shall be and are the exclusive property of the
Company to be used by the Employee only in the performance of his duties for the
Company. All such materials or copies thereof and all tangible property of the
Company in the custody or possession of the Employee shall be delivered to the
Company, upon the earlier of (i) a request by the Company or (ii) termination of
his employment. After such delivery, the Employee shall not retain any such
materials or copies thereof or any such tangible property.
(c) The Employee agrees that his obligation not to disclose or to use
information and materials of the types set forth in paragraphs (a) and (b)
above, and
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his obligation to return materials and tangible property, set forth in paragraph
(b) above, also extends to such types of information, materials and tangible
property of customers of the Company or suppliers to the Company or other third
parties who may have disclosed or entrusted the same to the Company or to the
Employee.
2. Developments.
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(a) The Employee will make full and prompt disclosure to the Company
of all inventions, improvements, discoveries, methods, developments, software,
and works of authorship, whether patentable or not, which are created, made,
conceived or reduced to practice by him or under his direction or jointly with
others during his employment by the Company, whether or not during normal
working hours or on the premises of the Company (all of which are collectively
referred to in this Agreement as "Developments").
(b) The Employee agrees to assign and does hereby assign to the Company
(or any person or entity designated by the Company) all his right, title and
interest in and to all Developments and all related patents, patent
applications, copyrights and copyright applications. However, this paragraph
2(b) shall not apply to Developments which do not relate to the present or
planned business or research and development of the Company and which are made
and conceived by the Employee not during normal working hours, not on the
Company's premises and not using the Company's tools, devices, equipment or
Proprietary Information. The Employee understands that, to the extent this
Agreement shall be construed in accordance with the laws of any state which
precludes a requirement in an employee agreement to assign certain classes of
inventions made by an employee, this paragraph 2(b) shall be interpreted not to
apply to any invention which a court rules and/or the Company agrees falls
within such classes. The Employee also hereby waives all claims to moral rights
in any Developments.
(c) The Employee agrees to cooperate fully with the Company, both during
and after his employment with the Company, with respect to the procurement,
maintenance and enforcement of copyrights, patents and other intellectual
property rights (both in the United States and foreign countries) relating to
Developments. The Employee shall sign all papers, including, without limitation,
copyright applications, patent applications, declarations, oaths, formal
assignments, assignments of priority rights, and powers of attorney, which the
Company may deem necessary or desirable in order to protect its rights and
interests in any Development. The Employee further agrees that if the Company is
unable, after reasonable effort, to secure the signature of the Employee on any
such papers, any executive officer of the Company shall be entitled to execute
any such papers as the agent and the attorney-in-fact of the Employee, and the
Employee hereby irrevocably designates and appoints each executive officer of
the Company as his agent and attorney-in-fact to
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execute any such papers on his behalf, and to take any and all actions as the
Company may deem necessary or desirable in order to protect its rights and
interests in any Development, under the conditions described in this sentence.
3. Other Agreements.
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The Employee hereby represents that, except as the Employee has disclosed
in writing to the Company, the Employee is not bound by the terms of any
agreement with any previous employer or other party to refrain from using or
disclosing any trade secret or confidential or proprietary information in the
course of his employment with the Company or to refrain from competing, directly
or indirectly, with the business of such previous employer or any other party.
The Employee further represents that his performance of all the terms of this
Agreement and as an employee of the Company does not and will not breach any
agreement to keep in confidence proprietary information, knowledge or data
acquired by the Employee in confidence or in trust prior to his employment with
the Company, and the Employee will not disclose to the Company or induce the
Company to use any confidential or proprietary information or material belonging
to any previous employer or others.
4. United States Government Obligations.
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The Employee acknowledges that the Company from time to time may have
agreements with the other persons or with the United States Government, or
agencies thereof, which impose obligations or restrictions on the Company
regarding inventions made during the course of work under such agreements or
regarding the confidential nature of such work. The Employee agrees to be bound
by all such obligations and restrictions which are made known to the Employee
and to take all action necessary to discharge the obligations of the Company
under such agreements.
5. No Employment Contract.
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The Employee understands that this Agreement does not constitute a contract
of employment and does not imply that his employment will continue for any
period of time.
6. Miscellaneous.
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(a) The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement.
(b) This Agreement supersedes all prior agreements, written or oral,
between the Employee and the Company relating to the subject matter of this
Agreement. This Agreement may not be modified, changed or discharged in whole
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or in part, except by an agreement in writing signed by the Employee and the
Company. The Employee agrees that any change or changes in his duties, salary or
compensation after the signing of this Agreement shall not affect the validity
or scope of this Agreement.
(c) This Agreement will be binding upon the Employee's heirs, executors
and administrators and will inure to the benefit of the Company and its
successors and assigns.
(d) No delay or omission by the Company in exercising any right under this
Agreement will operate as a waiver of that or any other right. A waiver or
consent given by the Company on any one occasion is effective only in that
instance and will not be construed as a bar to or waiver of any right on any
other occasion.
(e) The Employee expressly consents to be bound by the provisions of
this Agreement for the benefit of the Company or any subsidiary or affiliate
thereof to whose employ the Employee may be transferred without the necessity
that this Agreement be re-signed at the time of such transfer.
(f) The restrictions contained in 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. The Employee agrees that any breach
of this Agreement is likely to cause the Company substantial and irrevocable
damage and therefore, in the event of any such breach, the Employee agrees that
the Company, in addition to such other remedies which may be available, shall be
entitled to specific performance and other injunctive relief.
(g) This Agreement is governed by and will be construed as a sealed
instrument under and in accordance with the laws of the Commonwealth of
Massachusetts. Any action, suit, or other legal proceeding which is commenced to
resolve any matter arising under or relating to any provision of this Agreement
shall be commenced only in a court of the Commonwealth of Massachusetts (or, if
appropriate, a federal court located within Massachusetts), and the Company and
the Employee each consents to the jurisdiction of such a court.
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THE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND
UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.
WITNESS: BUYER
Date: By:
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(print name and title)
O. Xxxxx Xxxxxx
Date:
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(signature)
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