Exhibit 10.3
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into as of December
10, 2001 (the "Effective Date"), by and between Xxxxxx X. Xxxx (the
"Executive"), XxxXxxxxxx.xxx, Inc., a Delaware corporation ("TekInsight") and
Tekinsight Services, Inc., a wholly-owned subsidiary of TekInsight and a
Delaware corporation ("Services"). This Agreement replaces the Employment
Agreement between the Executive and Tekinsight dated January 2, 2001.
RECITALS
The parties desire that the Executive be employed by Tekinsight and
Services, in the capacities described below, on the terms and conditions
hereinafter set forth, and the Executive is willing to accept such employment on
such terms and conditions.
AGREEMENT
The Executive, Tekinsight and Services agree as follows:
1. Duties.
1.1 Retention. TekInsight and Services do hereby hire, engage and employ
the Executive as the President and Chief Executive Officer of Services
and TekInsight does hereby hire, engage and employ the Executive as
the President and Chief Executive Officer of Tekinsight and any other
wholly-owned subsidiaries of Tekinsight (with TekInsight and Services
being referred to together as the "Company"), and the Executive does
hereby accept and agree to such hiring, engagement, and employment.
During the Period of Employment (as defined in Section 2), the
Executive shall serve the Company in such positions, and shall have
duties and authority consistent with such positions, subject, however,
to the other provisions of this Agreement, directives of the Boards of
Directors of each constituent of the Company, as relevant (the
"Board"), and the corporate policies and budgets of each constituent
of the Company as they presently exist, and as such policies and
budgets may be amended, modified, changed, or adopted during the
Period of Employment. During the Period of Employment, the Executive
shall report to the Board of each constituent of the Company. The
Executive shall also serve as a member of the Board of each
constituent of the Company during the Period of Employment.
1.2 No Other Employment. Throughout the Period of Employment, the
Executive shall devote his full business time, energy, and skill to
the performance of his duties for the Company (vacations and other
leave authorized under this Agreement excepted) and shall devote his
best efforts to advancing the interests of the Company. The Executive
agrees that any appointment to or continuing service on the board of
directors of any other corporation other than the Company must be
approved in writing by the Board, such approval not to be unreasonably
withheld based upon such appointment not being likely to interfere
with the performance of the Executive's duties hereunder; provided,
that the Company's advance approval is not required for the Executive
to serve on the board of directors or as an officer of any other
subsidiary of the Company, non-profit trade association, or non-profit
civic, educational or other charitable organization (in each case
subject to the following sentence). The Executive's continued
membership on any board or in any other position referenced in the
preceding sentence, on or in which he may now or in the future serve,
is subject to the conditions (a) that the Executive's membership or
position does not materially interfere with the performance of the
Executive's duties hereunder, and (b) that the entity with which the
Executive is affiliated does not compete (within the meaning of
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Section 9 of this Agreement, without giving effect to the last
sentence thereof) with the business then being actively conducted of
any entity within the Company Group. For purposes of this Agreement,
the "Company Group" includes, collectively, the Company and any
subsidiary or controlled affiliate of the Company.
1.3 No Breach of Contract. The Executive hereby represents to the Company
that his execution and delivery of this Agreement and the performance
of his duties hereunder will not constitute a breach of, or otherwise
contravene, the terms of any employment or other agreement or policy
to which the Executive is a party or otherwise bound. The Company
hereby represents to the Executive that it is authorized to enter into
this Agreement and that the execution and delivery of this Agreement
and the employment of the Executive hereunder will not constitute a
breach of, or otherwise contravene, the terms of any law, agreement or
policy by which it is bound.
2. Period of Employment.
The "Period of Employment" shall, unless sooner terminated as provided
herein, be a three (3) year period commencing on the Effective Date
and ending at the close of business on the day before the third (3rd)
anniversary of the Effective Date. "Remaining Contract Period" shall
mean the period between termination and the third (3rd) anniversary of
the Effective Date.
3. Compensation.
3.1 Base Salary. The Executive's Base Salary shall continue at the current
annual rate of $350,000 until the closing of the proposed acquisition
of DynCorp Management Resources, Inc. ("DMR"), at which time it shall
be increased to a rate of $400,000 annually (as used in this
Agreement, "Base Salary" shall mean Base Salary as it may be increased
by the Company, in its discretion, from time to time.) The Executive's
Base Salary, as in effect from time to time, shall not be decreased
for any reason or for any purpose (including for purposes of
determining any amounts due to the Executive upon a termination of his
employment) during the Period of Employment.
3.2 Bonus. The Executive shall be eligible for incentive bonus payments of
at least fifty percent (50%) of his Base Salary during each fiscal
year of the Period of Employment, beginning July 1, 2001 (the
"Bonus"). Upon meeting the criteria, and approval by the Board, such
Bonus shall be paid in quarterly installments within 60 days of the
Company's fiscal quarter-end. During the first fiscal year under this
contract, the Bonus criteria shall be as follows:
3.2.1 Quarter ended September 30, 2001. Shall become due upon the completion
of the acquisition of DMR, provided that the merger is completed
during the fiscal year ended June 30, 2002.
3.2.2 Quarter ended December 31, 2001. Shall become due upon the completion
of the recapitalization that is planned for the financing of the
consolidated entity of Services and DMR, provided that such financing
is completed during the fiscal year ended June 30, 2002.
3.2.3 Quarter ended March 31, 2002. Shall become due if the Company's Stock
Price on March 31, 2002 meets or exceeds the Stock Price on the date
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of the merger with DMR. "Stock Price" is defined as the average
closing price on Nasdaq during the ten (10) trading days prior to the
date, weighted for trading volumes.
3.2.4 Quarter ended June 30, 2002. Shall become due if the Company's Stock
Price on June 30, 2002 meets or exceeds 110% of the Stock Price on the
date of the merger with DMR.
3.2.5 Fiscal quarters after June 30, 2002. Shall be determined by criteria
established by mutual consent between the Executive and the
Compensation Committee.
3.3 Note Receivable Extension. The balance due under the note receivable,
dated January 2, 2001, from Executive, originally in the amount of
$170,000, shall be extended to the end of the Period of Employment,
under the same terms and conditions.
3.3.1
Note Receivable Forgiveness. If the Company's Stock Price on June 30,
2002 meets or exceeds 110% of the Stock Price on the date of the
merger with DMR, the Company shall forgive the note payable by
Executive in the amount of $100,000.
3.4
Equity Compensation. The Executive shall be considered for annual
stock option grants, in accordance with the policies and procedures of
the Company then in effect for executive management stock option
grants.
3.5
Board of Director Compensation. The Executive shall be compensated as
a member of the Board of Directors in an amount consistent with other
non-employee Board members of the Company, including annual stock
option grants issued to Board members.
4. Benefits.
4.1
Health and Welfare. During the Period of Employment, the Executive
shall be entitled to participate in all pension and welfare benefit
plans and programs generally made available to the Company's executive
management, as such plans or programs may be in effect from time to
time, including, without limitation, pension, profit sharing, savings
and other retirement plans or programs, medical, dental,
hospitalization, short-term and long-term disability and life
insurance plans, accidental death and dismemberment protection, travel
accident insurance, and any other pension or retirement plans or
programs and any other employee welfare benefit plans or programs that
may be sponsored by the Company from time to time, including any plans
that supplement the above-listed types of plans or programs, whether
funded or unfunded. The Company shall supplement the insurance
coverage and benefits in a separate executive benefits plan that
includes a minimum of $1 million life insurance coverage and
appropriate long-term disability coverage, which benefit plans, for
the Executive and his dependents, shall be fully paid by the Company.
4.2 Reimbursement of Business and Other Expenses; Perquisites
4.2.1 Expense Reimbursement. The Executive is authorized to incur reasonable
expenses in carrying out his duties and responsibilities under this
Agreement and the Company shall promptly reimburse him for all
reasonable business expenses incurred in connection with carrying out
the business of the Company, subject to the Company's reimbursement
policies and procedures for executive officers in effect from time to
time. Business expenses shall include cellular phone costs and a home
business telephone line, with broadband access.
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4.2.2 Other. Executive shall participate in an executive perk fund with the
same parameters as are made available to other members of the
Company's executive management.
4.3 Vacations and Other Leave. During the Period of Employment, the
Executive shall receive at least three (3) weeks paid vacation per
year, accrued in advance upon the Effective Date of this Agreement, or
on the extension date of future periods. The Executive shall also be
entitled to all other holiday and leave pay generally available to
other members of the Company's executive management.
5. Death or Disability.
5.1 Definition of Disabled and Disability. For purposes of this Agreement,
the terms "Disabled" and "Disability" shall mean the Executive's
inability, because of physical or mental illness or injury, to perform
the essential function of his customary duties pursuant to this
Agreement, with or without reasonable accommodation, and the
continuation of such disabled condition for a period of one hundred
twenty (120) continuous days, or for not less than one hundred eighty
(180) days during any continuous twenty-four (24) month period. The
Company reserves the right, in good faith, to make the determination
of Disability under this Agreement based upon information supplied by
the Executive and/or his medical personnel, as well as information
from medical personnel or others selected by the Company or its
insurers.
5.2 Termination Due to Death or Disability. If the Executive dies or
becomes Disabled during the Period of Employment, the Period of
Employment and the Executive's employment shall automatically cease
and terminate as of the date of the Executive's death or the date of
Disability (which date shall be determined under Section 5.1 above),
as the case may be. In the event of the termination of the Executive's
employment due to his death or Disability, the Executive (or, in the
event of his death, his estate) shall be entitled to receive only
those benefits set forth in Section 7.1; provided that if the
Executive's employment is terminated by reason of the Executive's
Disability, he shall, so long as his Disability continues, remain
eligible for all benefits provided under any long-term disability
programs of the Company in effect at the time of such termination,
subject to the terms and conditions of any such programs, as the same
may be changed, modified or terminated for or with respect to
employees of the Company generally.
6. Termination.
6.1 Termination For Cause. The Company may, by providing written notice to
the Executive, terminate the Period of Employment and the Executive's
employment hereunder for Cause at any time. The term "Cause" for
purposes of this Agreement shall mean:
(a) the Executive is convicted of, or has pleaded guilty or entered a
plea of nolo contendere to, a felony (under the laws of the
United States or any state thereof);
(b) fraudulent conduct by the Executive in connection with the
business or other affairs of any member of the Company Group or
the theft, embezzlement, or other criminal misappropriation of
funds by the Executive from any member of the Company Group;
(c) the Executive's failure to perform the duties of the President
and Chief Executive Officer of either TekInsight or Services,
after reasonable notice has been provided of such non-performance
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and, if such failure is curable, Executive has not cured such
failure within a reasonable period following such notice;
(d) the Executive's failure to comply with reasonable directives of
the Board which are communicated to him in writing, after
reasonable notice has been provided of such non-performance and,
if such failure is curable, Executive has not cured such failure
within a reasonable period following such notice.
If the Executive's employment is terminated by the Company for Cause,
the termination shall take effect on the effective date (pursuant to
Section 14.9) of written notice of such termination to the Executive.
In the event of the termination of the Period of Employment and the
Executive's employment hereunder due to a termination by the Company
for Cause, then the Executive shall be entitled to receive only those
benefits set forth in Section 7.2.1, and all amounts of principal and
accrued interest outstanding under that Note and any related
agreements annexed hereto as Exhibit A, shall be accelerated and
immediately due and payable.
6.2 Termination Without Cause. The Company may, with or without reason,
terminate the Period of Employment and the Executive's employment
hereunder without Cause at any time by providing the Executive written
notice of such termination. If the Executive's employment is
terminated without Cause, the termination shall take effect on the
effective date (pursuant to Section 14.9) of written notice of such
termination to the Executive. If the Executive's employment is
terminated without Cause, he shall be entitled to those benefits as
specified in Section 7.1 (a), (b), (c) and (d).
In the event of the termination of the Period of Employment and the
Executive's employment hereunder due to a termination by the Company
without Cause (other than due to the Executive's death or Disability),
the Executive shall be entitled to receive:
(a) those benefits set forth in Section 7.1 (a), (c) and (d) hereof;
(b) a Severance Payment equal to the lesser of (a) the aggregate of
the remaining Base Salary payments due under the term of the
Agreement or (b) the Executive's monthly Base Salary plus the
Bonus amount divided by twelve (12), as both are in effect
immediately prior to such termination, payable over a 24 month
period (the "Severance Period"), payable one-half upon
termination and one-half in monthly installments through the
Severance Period. The Severance Payment is not in addition to,
but in lieu of, the remaining payments due under the term of the
Agreement.
(c) any options to purchase stock in the Company granted to Executive
pursuant to any plan or otherwise, shall become immediately
accelerated and fully vested.
(d) in the event Executive elects continued coverage under COBRA, the
Company will reimburse Executive for the same portion of
Executive's COBRA health insurance premium that it paid during
Executive's employment up until the earlier of either: (i) the
end of the Severance Period, or (ii) the date on which Executive
becomes covered under any other group health plan (as an employee
or otherwise).
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If a diminution of the Executive's senior management position,
responsibilities or compensation and benefits as President and Chief
Executive Officer or a change in his reporting responsibility to the
Board of Directors, he may, within four months of such diminution or
change in reporting responsibility, terminate his employment and be
entitled to those benefits specified in Sections 6.2(a) and (b) above.
6.3 Change in Control. In the event that either: 1) a Change of Control
(as defined below) of TekInsight occurs prior to the expiration of the
Term and 2) the Company terminates Executive's employment without
Cause pursuant to Section 6.2 herein, within three (3) months prior to
or following the effective date of a Change of Control of the Company,
then: (i) Executive will be entitled to those benefits described in
Section 6.2, with the additional provision that the Severance Payment
paid pursuant to Section 6.2(b), shall be paid over a period of 36
months, instead of 24 months, and the entire amount of the Severance
Payment shall be payable upon termination as a lump sum.
For purposes of this Agreement, Change of Control means: (i) a sale or
other disposition of all or substantially all of the assets of
TekInsight; (ii) a merger or consolidation in which TekInsight is not
the surviving entity and in which the shareholders of TekInsight
immediately prior to such consolidation or merger own less than fifty
percent (50%) of the surviving entity's voting power immediately after
the transaction; (iii) a reverse merger in which TekInsight is the
surviving entity but the shares of TekInsight's Common Stock
outstanding immediately preceding the merger are converted by virtue
of the merger into other property, whether in the form of securities,
cash, or otherwise, and in which the shareholders of TekInsight
immediately prior to such merger own less than fifty percent (50%) of
TekInsight's voting power immediately after the transaction; or (iv)
any other capital reorganization in which more than fifty percent
(50%) of the shares of TekInsight entitled to vote are exchanged
(other than to form a holding company in which the shareholders of
TekInsight immediately prior to such recapitalization own not less
than fifty percent (50%) of the holding company's voting power
immediately after the transaction). Change of Control excludes the
effects of the merger between TekInsight's wholly-owned subsidiary and
DynCorp Management Resources, Inc. (the "Merger"), as well as any
financing transactions completed within three months following the
effective date of the Merger.
6.4 Termination by Executive. In the event that the Executive terminates
his employment with the Company for any reason other than death or
Disability, all amounts of principal and accrued interest outstanding
that are due the Company shall be accelerated and immediately due and
payable.
7. Expiration of Period of Employment.
7.1 Benefits Upon Expiration of Period of Employment. If the Company
elects not to extend the Period of Employment pursuant to Section 2,
unless the Executive's employment is earlier terminated pursuant to
Sections 6 or 7, termination of the Executive's employment hereunder
shall be deemed to occur at the close of business on the day
immediately preceding the third anniversary of the Effective Date
which occurs at least six (6) months after delivery of the
non-extension notice in accordance with Section 2. If the Company
elects not to extend the Period of Employment, upon the Executive's
termination in accordance with the preceding sentence he will be
entitled to receive:
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(a) those benefits set forth in Section 7.2.1 hereof;
(b) the greater of: (i) those payments remaining due under the Period
of Employment or (ii) an eighteen month payout of payments equal
to the Executive's annual Base Salary plus one year of the annual
Bonus amount in effect immediately prior to such termination;
such amount divided by eighteen (18), and
(c) all options exercisable to acquire shares of TekInsight Common
Stock granted to the Executive by TekInsight during his
employment term will become fully vested.
(d) medical and other insurance coverage benefits will be extended
for a period of eighteen (18) months from the termination date
7.2 General Termination Provisions.
7.2.1 General Termination Benefits. Subject to the other provisions of this
Agreement, in the case of any of the foregoing terminations or the
expiration of the Period of Employment, the Executive or his estate
shall be entitled to (without duplication of benefits):
(a)
any accrued but unpaid Base Salary as of the date of such
termination, including unused vacation;
(b)
any earned but unpaid cash incentive compensation as of the date
of such termination;
(c)
any reimbursements or allowances due but not yet paid to the
Executive; and
(d) such employee benefits described in Section 5.1 as the Executive
or his estate may be entitled to hereunder or under the employee
benefit plans, programs and arrangements of the Company.
All amounts due the Executive in accordance with this Section 7.2.1
shall be paid promptly following their becoming due as provided
hereunder.
7.2.2 Other Termination Provisions. In the event of any termination of
employment under this Agreement, the Executive shall be under no
obligation to seek other employment and there shall be no offset
against amounts due the Executive under this Agreement on account of
any remuneration attributable to any subsequent employment that he may
obtain except (i) on account of any claims the Company may have
against the Executive under the terms of this Agreement or otherwise,
or (ii) on account of any amounts outstanding under the terms of the
Note and any related agreements annexed hereto as Exhibit A, in either
case the amounts of which shall be offset against amounts due to
Executive under the Agreement. Any amounts due under Sections 5, 6, or
7 are in the nature of severance payments considered to be reasonable
by the Company and are not in the nature of a penalty.
8. Means and Effect of Termination. Any termination of the Executive's
employment under this Agreement shall be communicated by written
notice of termination from the terminating party to the other party.
The notice of termination shall indicate the specific provision(s) of
this Agreement relied upon in effecting the termination and shall set
forth in reasonable detail the facts and circumstances alleged to
provide a basis for termination, if any such basis is required by the
applicable provision(s) of this Agreement.
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9. Non-Competition.
The Executive acknowledges and recognizes the highly competitive
nature of the businesses of the Company Group, the amount of sensitive
and confidential information involved in the discharge of the
Executive's position as President and Chief Executive Officer of the
Company, and the harm to the Company Group that would result if such
knowledge or expertise was disclosed or made available to a
competitor, and accordingly agrees as follows:
(a) During the Period of Employment and, as a result of the
particular nature of the Executive's relationship with the
Company as its President and Chief Executive Officer, for the one
(1) year period immediately following the termination of the
Period of Employment, the Executive will not, directly or
indirectly, (i) engage in any business for the Executive's own
account that competes with the business of any entity within the
Company Group, (ii) enter the employ of, or render any services
to, any person engaged in any business that competes with the
business of any entity within the Company Group, (iii) acquire a
financial interest in any person engaged in any business that
competes with the business of any entity within the Company
Group, directly or indirectly, as an individual, partner,
shareholder, officer, director, principal, agent, trustee or
consultant, or (iv) interfere with business relationships
(whether formed before or after the date of this Agreement)
between the Company, any of its affiliates or subsidiaries, and
any customers, suppliers, officers, employees, partners, members
or investors of any entity within the Company Group.
(b) Notwithstanding anything to the contrary in this Agreement, the
Executive may, directly or indirectly, own, solely as an
investment, securities of any person engaged in the business of
any member of the Company Group which are publicly traded on a
national or regional stock exchange or on an over-the-counter
market if the Executive (i) is not a controlling person of, or a
member of a group which controls, such person and (ii) does not,
directly or indirectly, own one percent (1%) or more of any class
of securities of such person.
For purposes of this Agreement, businesses in competition with the
Company Group shall include businesses which any entity within the
Company Group has specific plans to conduct in the future and as to
which planning the Executive is aware.
10. Confidentiality; Assignment of Inventions.
10.1 Confidentiality.
10.1.1. Confidential Information. During the term of Executive's employment by
the Company or any other member of the Company Group, and at any time
following the termination of Executive's employment by the Company or
any other member of the Company Group, for any or no reason, whether
voluntary or involuntary, with or without cause, Employee will not,
without the express prior written consent of the Company, disclose to
others, use or publish (other than as may be required by Executive's
duties while employed by the Company or any other member of the
Company Group, or in the ordinary course of the business of the
Company or any other member of the Company Group) any proprietary,
secret or confidential information of the Company or any other member
of the Company Group ("Company Information"), which for the purposes
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hereof shall include, without limitation, information designated by
the Company or any other member of the Company Group as "proprietary,"
"secret," or "confidential" (or otherwise similarly designated) or
information which is not generally known to those outside of the
Company Group detailing, listing, describing or otherwise relating to:
(i) the business, conduct or operations of the Company, any other
member of the Company Group, or any of the customers, licensors,
licensees, suppliers, consultants or employees of any member of
the Company Group; or
(ii) any materials, devices, processes, methods, ways of business,
programs, and/or formulae, technology, research, development,
lists naming the parties in the categories described in
subprovision (i) above and the like, used in organizing,
promoting, conducting, managing or exploiting the products or
services of any member of the Company Group; or
(iii) the existence or betterment of, or possible new uses or
applications for, any of the products or services of any member
of the Company Group.
The obligations of confidentiality set forth in this Section 10.1
extend to any proprietary information of any third parties contracting
with any member of the Company Group whether or not any member of the
Company Group has undertaken an express obligation of confidentiality
with regard to such persons. Notwithstanding the foregoing, the term
Company Information shall not apply to information (u) Executive is
compelled pursuant to an order of a court or other body having
jurisdiction over such matter to do so (in which case the Company
shall be given prompt written notice of such intention to divulge not
less that five (5) days prior to such disclosure or such shorter
period as the circumstances may reasonably permit), (v) which the
Company or any of its affiliates has voluntarily disclosed to the
public without restriction, (w) which has otherwise lawfully entered
the public domain, (x) which the Company or any of its affiliates has
permitted Executive to disclose by its prior written consent,; or (y)
which Executive may disclose at a forum, workshop or round table
conference with the prior knowledge and consent of the Company.
10.1.2. Return of Confidential Information. Upon the termination of
Executive's employment by the Company, Executive agrees that he will
not take from (nor keep copies or duplicates of), but will promptly
return to the Company, any drawings, notes, plans, lists, computer
programs or files, blueprints, letters, writings or any other
documents whatsoever or reproductions thereof recording, reflecting or
embodying any Company Information.
10.1.3 Non-disclosure Agreements with Third Parties. Executive acknowledges
that members of the Company Group are now and may hereafter be subject
to non-disclosure or confidentiality agreements with third persons or
entities pursuant to which members of the Company Group must protect
or refrain from use of proprietary information which is the property
of such third persons. Executive hereby agrees upon the direction of
the Company to be bound by the terms of such agreements in the event
Executive has access to the proprietary information protected
thereunder to the same extent as if Executive was an original
individual signatory thereto.
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10.2 Assignment of Inventions.
(a) Any and all inventions, processes, procedures, systems,
discoveries, designs, configurations, technology, works of
authorship (including but not limited to computer programs),
trade secrets and improvements (whether or not patentable and
whether or not they are made, conceived or reduced to practice
during working hours or using the data or facilities of any
member of the Company Group) (collectively, the "Inventions")
which Executive makes, conceives, reduces to practice, or
otherwise acquires during the term of this Agreement (either
solely or jointly with others), and which are related to the
present or planned business, services or products of the Company
or any other member of the Company Group, shall be the sole
property of the Company and shall at all times and for all
purposes be regarded as acquired and held by Executive in a
fiduciary capacity for the sole benefit of the Company. All
Inventions that consist of works of authorship capable of
protection under copyright laws shall be prepared by Executive as
"works made for hire", with the understanding that the Company
shall own all of the exclusive rights to such works of authorship
under the United States copyright law and all international
copyright conventions and foreign laws. Executive hereby assigns
to the Company, without further compensation, all such Inventions
and any and all patents, copyrights, trademarks, trade names or
applications therefor, in the United States and elsewhere,
relating thereto. Executive shall promptly disclose to the
Company and to no other party all such Inventions and shall
assist the Company for its own benefit in obtaining and enforcing
patents and copyright registrations on such Inventions in all
countries. Upon request, Executive shall execute all
applications, assignments, instruments and papers and perform all
acts (such as the giving of testimony in interference proceedings
and infringement suits or other litigation) necessary or desired
by the Company to enable the Company and its successors, assigns
and nominees to secure and enjoy the full benefits and advantages
of such Inventions.
(b) In the event the Company is unable, after reasonable effort, to
secure Executive's signature on any document or instrument
necessary to secure trademarks, letters patent, copyrights or
other analogous protection relating to an Invention, whether
because of Executive's physical or mental incapacity or for any
other reason whatsoever, Executive hereby irrevocably designates
and appoints the Company and its duly authorized officers and
agents as Executive's agent and attorney-in-fact, to act for and
in Executive's behalf and stead to execute and file any such
application or applications and to do all other lawfully
permitted acts to further the prosecution and issuance of
trademarks, letters patent, copyright or other analogous
protection thereon with the same legal force and effect as if
executed by Executive.
(c) Executive hereby represents and warrants to the Company that
Executive (i) is not presently under and will not hereafter
become subject to any obligation to any person which is
inconsistent or in conflict with this Agreement or which would
prevent, limit or impair in any way Executive's performance of
Executive's obligations hereunder and (ii) has not disclosed and
will not disclose to the Company, nor use for the Company's
benefit, any confidential information or trade secrets of any
prior employer or principal, unless and until such confidential
information and trade secrets have become public knowledge
without Executive's participation, or unless such disclosure is
expressly permitted by any agreement with such prior employer or
principal.
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11. Antisolicitation; No Disparagement.
The Executive promises and agrees that during the Period of Employment
and for a period of two (2) years thereafter:
(a) he will not influence or attempt to influence customers of any
entity within the Company Group (as it may now or in the future
be composed), either directly or indirectly, to divert their
business away from the Company Group to any individual,
partnership, firm, corporation or other entity then in
competition with the business of any entity within the Company
Group; and
(b) he will not make disparaging statements, whether oral or written,
regarding any entity within the Company Group.
The Company promises and agrees that during the Period of Employment
and for a period of two (2) years thereafter that it will not make
disparaging statements, whether oral or written, regarding Executive.
12. Soliciting Employees.
The Executive promises and agrees that for a period of one year
following termination of his employment he will not directly or
indirectly solicit any person who is then, or at any time within six
months prior thereto was, an employee of an entity within the Company
Group who earned on an annual basis $25,000 or more as an employee of
such entity at any time during the last six months of his or her own
employment to work for any business, individual, partnership, firm,
corporation, or other entity then in competition with the business of
any entity within the Company Group.
13. Indemnification.
The Company agrees to indemnify the Executive to the fullest extent
permitted by the law of the jurisdiction in which the Company is
incorporated against claims asserted against him personally arising
out of, or related to, the business of the Company or the Executive's
services for the Company. The Company shall provide officers'
liability insurance coverage to the Executive consistent with the
levels of coverage that it provides generally to its other executive
officers from time to time.
14. General.
14.1 Assignment. This Agreement is personal in its nature and neither of
the parties hereto shall, without the consent of the other, assign or
transfer this Agreement or any rights or obligations hereunder;
provided, however, that, in the event of a merger, consolidation, or
transfer or sale of all or substantially all of the assets of the
Company with or to any other individual(s) or entity, this Agreement
shall, subject to the provisions hereof, be binding upon and inure to
the benefit of such successor and such successor shall discharge and
perform all the promises, covenants, duties, and obligations of the
Company hereunder.
14.2 Governing Law. This Agreement and the legal relations hereby created
between the parties hereto shall be governed by and construed under
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and in accordance with the internal laws of the State of California,
without regard to conflicts of laws principles thereof.
The Executive and the Company agree (a) that his or its legal counsel
participated in the preparation of this Agreement and/or he or it has
had ample opportunity to have his or its legal counsel fully examine
this Agreement, and (b) that the rule of construction that ambiguities
are to be resolved against the drafting party shall not be employed in
the interpretation of this Agreement to the favor of either party
hereto against the other.
14.3 Entire Agreement. This Agreement embodies the entire agreement of the
parties hereto respecting the matters within its scope. This Agreement
supersedes all prior agreements of the parties hereto (including
without limitation the Employment Agreement between Executive and
TekInsight dated January 2, 2001) on the subject matter hereof. Any
prior negotiations, correspondence, agreements, proposals or
understandings relating to the subject matter hereof shall he deemed
to be merged into this Agreement and to the extent inconsistent
herewith, such negotiations, correspondence, agreements, proposals, or
understandings shall be deemed to be of no force or effect. There are
no representations, warranties, or agreements, whether express or
implied, or oral or written, with respect to the subject matter
hereof, except as set forth herein.
14.4 Modifications. This Agreement shall not be modified by any oral
agreement, either express or implied, and all modifications hereof
shall be in writing and signed by the parties hereto.
14.5 Waiver. Failure to insist upon strict compliance with any of the
terms, covenants, or conditions hereof shall not be deemed a waiver of
such term, covenant, or condition, nor shall any waiver or
relinquishment of, or failure to insist upon strict compliance with,
any right or power hereunder at any one or more times be deemed a
waiver or relinquishment of such right or power at any other time or
times.
14.6 Number and Gender. Where the context requires, the singular shall
include the plural, the plural shall include the singular, and any
gender shall include all other genders.
14.7 Section Headings. The section headings in this Agreement are for the
purpose of convenience only and shall not limit or otherwise affect
any of the terms hereof.
14.8 Severability. In the event that a court of competent jurisdiction
determines that any portion of this Agreement is in violation of any
statute or public policy, then only the portions of this Agreement
which violate such statute or public policy shall be stricken, and all
portions of this Agreement which do not violate any statute or public
policy shall continue in full force and effect. Furthermore, any court
order striking any portion of this Agreement shall modify the stricken
terms as narrowly as possible to give as much effect as possible to
the intentions of the parties under this Agreement.
14.9 Notices. All notices under this Agreement shall be in writing and
shall be either personally delivered or mailed postage prepaid, by
certified United States mail, return receipt requested, delivered by
overnight courier, delivered by facsimile (with confirmation back), or
delivered by e-mail (with proof of delivery):
(a) if to the Company, at the address of the Company's principal
executive offices to the attention of the Chief Financial
Officer; or
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(b) if to the Executive, at the address of the Executive's
principal residence as last reflected on the Company's
records.
Either party may change its address set forth above by written notice
given to the other party in accordance with the foregoing. Any notice
shall be effective when personally delivered, three (3) business days
after being mailed in accordance with the foregoing, one day after
being delivered to an overnight courier of national reputation when
identified for priority and next day delivery, or upon delivery by
facsimile or e-mail.
14.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same instrument.
14.11 Withholding Taxes. The Company may withhold from any amounts payable
under this Agreement such federal, state and local income, employment,
or other taxes as may be required to be withheld pursuant to any
applicable law or regulation.
14.12 Section 280G. Notwithstanding anything to the contrary set forth in
this Agreement, under no event shall the Company be obligated to pay
to Executive any severance payments or other amounts which, when taken
together with all other payments and benefits provided by Company to
Executive in connection with such termination of employment (whether
pursuant to this Agreement or otherwise), would be deemed to
constitute excess parachute payments subject to any excise tax under
Sections 4999 and/or 280G of the Internal Revenue Code of 1986, as
amended.
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IN WITNESS WHEREOF, the Company and the Executive have executed this
Employment Agreement as of the date first above written.
THE COMPANY
Tekinsight Services, Inc.,
a Delaware corporation
By:/s/Xxxxx Xxxxxxx
---------------------------
Xxxxx Xxxxxxx
Chief Financial Officer
Xxxxxxxxxx.Xxx, Inc.,
a Delaware corporation
By:/s/Xxxxx Xxxxxxx
---------------------------
Xxxxx Xxxxxxx
Chief Financial Officer
THE EXECUTIVE
/s/Xxxxxx X. Xxxx
---------------------------
Xxxxxx X. Xxxx
