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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of this 1st day of January, 1999 by and between
INTELLIGENT INFORMATION INCORPORATED, a Delaware corporation with principal
executive offices at Xxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxxx 00000
("III"), and XXXXXX X. XXXXXX, residing at 00 Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx
00000 ("Unnold").
W I T N E S S E T H :
III is desirous of employing Unnold as Chairman of the Board of
Directors of III and Unnold is desirous of serving III in such capacity, all
upon the terms and subject to the conditions hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto, intending to be legally bound,
agree as follows:
1. Employment.
III agrees to employ Unnold, and Unnold agrees to be employed by
III, upon the terms and subject to the conditions of this Agreement.
2. Term.
The employment of Unnold by III as provided in Section 1 will be for
a period of three (3) years commencing on the date hereof, unless sooner
terminated as hereinafter provided (the "Term"), and shall automatically renew
from year to year thereafter unless either party gives at least ninety (90) days
prior written notice of termination.
3. Duties; Best Efforts; Indemnification.
Unnold shall serve as Chairman of the Board of Directors of III and
shall preside at all meetings of the stockholders and the Board of Directors of
III. Unnold shall also have such other powers and perform such other duties as
may from time to time be assigned by the Board of Directors of III, including,
without limitation, assisting III with acquisitions, provided, however, that the
nature of Unnold's powers and duties so assigned shall not be inconsistent with
Unnold's position and duties hereunder.
Unnold shall devote his business time, attention and energies to the
business and affairs of III, shall use his best efforts to advance the best
interests of III and shall not during the Term
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be actively engaged in any other business activity, whether or not such business
activity is pursued for gain, profit or other pecuniary advantage, that will
interfere with the performance by Unnold of his duties hereunder or Unnold's
availability to perform such duties or that will adversely affect, or negatively
reflect upon, III.
Subject to the provisions of III's Certificate of Incorporation and
Bylaws, each as amended from time to time, III shall indemnify Unnold to the
fullest extent permitted by the General Corporation Law of the State of
Delaware, as amended from time to time, for all amounts (including, without
limitation, judgments, fines, settlement payments, expenses and attorney's fees)
actually and reasonably incurred or paid by Unnold in connection with any
action, suit, investigation or proceeding arising out of or relating to the
performance by Unnold of services for, or the acting by Unnold as a director,
officer, or employee of, III, or any other person or enterprise at III's request
if Unnold acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of III, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. III shall use its best efforts to obtain and maintain in full force
and effect during the Term directors' and officers' liability insurance policies
providing full and adequate protection to Unnold for his capacities, provided
that the Board of Directors of III shall have no obligation to purchase such
insurance if, in its opinion, coverage is available only on unreasonable terms.
4. Place of Performance.
In connection with his employment by III, Unnold shall be based at
the principal executive offices of III, which shall be in the Stamford,
Connecticut area. If III's principal executive offices are relocated more than
fifty (50) miles from their present location without the consent of Unnold,
Unnold shall have the right prior to such relocation to terminate his employment
hereunder pursuant to Section 6(c) hereof; provided, however, that if Unnold
does not exercise such right and instead remains in the employ of III following
such relocation, III will promptly pay (or reimburse Unnold for) all reasonable
moving and moving-related expenses incurred by Unnold as a consequence of a
change of his principal residence in connection with any such relocation of
III's principal executive offices.
5. Compensation.
(a) Base Salary. III shall pay Unnold a base salary (the "Base
Salary") at a rate of not less than $150,000 per annum, payable in equal
semimonthly installments during the Term. The Board of Directors of III at least
annually will review the Base Salary and other compensation during the Term with
a view to increase thereof based upon then prevailing industry salary scales for
equivalently valued businesses for the average of the top two positions,
Unnold's performance, the performance of III, inflation and other relevant
factors.
(b) Out-of-Pocket Expenses. III shall promptly pay to Unnold the
reasonable expenses incurred by him in the performance of his duties hereunder,
including, without
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limitation, those incurred in connection with business related travel or
entertainment, or, if such expenses are paid directly by Unnold, shall promptly
reimburse him for such payment, provided that Unnold properly accounts therefor
in accordance with III's policy.
(c) Participation in Benefit Plans. During the first year of the
Term, the Board of Directors of III will enact an executive benefits plan that
includes, but is not limited to, a pension plan, profit sharing plan, stock
option plan, stock purchase plan or arrangement and health and accident plan.
Unnold shall be entitled to participate in such plan or any other employee
benefit plan or arrangement made available in the future by III to its
executives and key management employees.
(d) Life Insurance. III shall maintain a key-man life insurance
policy on the life of Unnold in the aggregate amount of at least $1,000,000, the
proceeds of which shall be payable directly to III, and an additional life
insurance policy in the aggregate of $1,000,000 (the "Repurchase Policy") which
shall be held in a trust and which proceeds shall be used for the purpose of
funding the purchase by III of the equity of III then owned by Unnold pursuant
to Section 7(a) hereof. Unnold agrees to submit to such medical examinations, to
complete such documentation and otherwise to cooperate with III as may be
required to enable III to obtain and maintain such key-man life insurance.
(e) Automobile. III shall provide Unnold with exclusive use of an
automobile for business purposes during the Term and shall pay all costs in
connection therewith. Such automobile shall be replaced periodically during the
Term, and Unnold shall have the right, at the end of the Term or at any earlier
termination thereof, to purchase the automobile he is then using at its then
depreciated book value.
(f) Vacation. Unnold shall be entitled to paid vacation days in each
calendar year determined by III from time to time, but not less than four (4)
weeks in any calendar year, prorated in any calendar year during which Unnold is
employed hereunder for less than an entire year in accordance with the number of
days in such year during which he is so employed. Unnold shall also be entitled
to all paid holidays given by III to its executives and key management
employees.
(g) Incentive Compensation. III agrees to pay Unnold a bonus (the
"Bonus"), in addition to and separate from his Base Salary and subject to the
achievement of certain mutually agreed upon performance goals, in an amount up
to thirty-five percent (35%) of his Base Salary. Unnold shall be entitled to the
Bonus on a prorata basis for partial achievement of the performance goals.
(h) Supplemental Disability Insurance. III shall maintain the
long-term disability policy currently in effect for the benefit of Unnold.
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(i) Dues and Subscriptions. III shall pay, or reimburse Unnold for,
the cost of dues and subscriptions associated with business purposes in an
amount not to exceed $5,000 annually.
6. Termination.
Unnold's employment hereunder shall be terminated upon Unnold's
death and may be terminated as follows:
(a) By III for "Cause." A termination for Cause is a termination
evidenced by a resolution adopted by a vote of a majority of the members of the
Board finding that Unnold has (i) willfully failed to comply with any of the
material terms of this Agreement, (ii) willfully and repeatedly failed to
perform his duties hereunder, (iii) engaged in gross misconduct materially
injurious to III or (iv) been convicted of, or pleaded nolo contendere to, a
felony or a crime of moral turpitude; provided, however , that Unnold shall
receive thirty (30) days' advance written notice that the Board intends to meet
to consider Unnold's termination for Cause and specifying the actions
constituting Cause, Unnold shall not have cured the actions constituting Cause
during such thirty (30) day period and Unnold shall be given a reasonable
opportunity to be heard by the Board on the issue prior to the Board's vote on
the matter.
(b) By III due to Unnold's "Disability." For purposes of this
Agreement, a termination for Disability shall occur (i) upon the thirtieth
(30th) day after the Board has provided a written termination notice to Unnold
supported by a written statement from a reputable independent physician to the
effect that Unnold shall have become so incapacitated as to be unable to resume,
within the ensuing twelve (12) months, his employment hereunder by reason of
physical or mental illness or injury, or (ii) upon rendering of a written
termination notice by the Board after Unnold has been unable to substantially
perform his duties hereunder for six (6) consecutive months or for nine (9)
months in any twelve (12) month period (exclusive of any vacation permitted
under Section 5(e) hereof) by reason of any physical or mental illness. For
purposes of this Section 6(b), Unnold agrees to make himself available and to
cooperate in any reasonable examination by a reputable independent physician
retained by III.
(c) By Unnold for "Good Reason." For purposes of this Agreement,
Good Reason shall mean (i) any circumstance that has the effect of significantly
reducing Unnold's duties or authority provided for or contemplated herein (a
"Material Change"), (ii) a breach by III of its material obligations under this
Agreement (a "Material Breach"), (iii) the relocation of the principal executive
offices of III in excess of fifty (50) miles from their present location not
consented to by Unnold, (iv) the acquisition by any person (as such term is
defined in Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended), directly or indirectly, of securities of III representing fifty
percent (50%) or more of the combined voting power of III's then outstanding
securities in a transaction to which Unnold does not consent or (v) the future
disposition by III (whether direct or indirect, by sale of assets or stock,
merger, consolidation or otherwise) of all or substantially all of its business
and/or assets in a transaction to which Unnold does not consent; provided,
however, that a Material Change or a Material Breach shall
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constitute Good Reason only if Unnold has notified the Board in writing of the
existence and particulars of such Material Change or Material Breach and the
Board has failed to remedy such Material Change or Material Breach within thirty
(30) days of such notice.
7. Compensation upon Termination.
(a) In the event of the termination of Unnold's employment as a
result of Unnold's death, III shall (i) pay to Unnold's estate his Base Salary
and Bonus through the date of his death and (ii) for the longer of eighteen (18)
months following his death or the balance of the Term (as if such termination
had not occurred) provide continuation coverage to the members of Unnold's
family under all major medical and other health, accident, life or other
disability plans and programs in which such family members participated
immediately prior to his death. In the event of Unnold's death, upon the request
of his estate or beneficiaries with six (6) months of such death, III will be
required to buy the equity of III owned by Unnold to the extent that the
proceeds of the Repurchase Policy are sufficient to purchase such equity at its
fair market value (as determined below). In the event that the proceeds of the
Repurchase Policy exceed the amount necessary to purchase all of the equity of
Unnold, the excess shall be paid directly to Unnold's estate in cash. The fair
market value of Unnold's equity shall be established in good faith by the Board
of Directors as soon as practicable after the date hereof and shall be reviewed
by the Board thereafter on an annual basis. If Unnold's estate or beneficiaries
do not exercise their rights hereunder, the proceeds of the Repurchase Policy
shall be payable directly to III.
(b) In the event of the termination of Unnold's employment by III
for Cause or by Unnold other than for Good Reason, III shall pay to Unnold his
Base Salary and accrued Bonus through the date of his termination, and Unnold
shall have no further entitlement to any other compensation or benefits from
III.
(c) In the event of the termination of Unnold's employment by III
due to Disability, III shall pay to Unnold his Base Salary and accrued Bonus
through the date of his termination. In addition, for eighteen (18) months
following any such termination, III shall (i) continue to pay Unnold the Base
Salary in effect at the time of such termination less the amount, if any, then
payable to Unnold under any disability benefits of III and (ii) provide Unnold
continuation coverage under all major medical and other health, accident, life
or other disability plans and programs in which Unnold participated immediately
prior to such termination.
(d) In the event that Unnold's employment is terminated by III other
than (i) as a result of Unnold's death or (ii) for reasons specified in Section
6(b) or (c) or by Unnold for Good Reason, III shall continue to pay to Unnold
his Base Salary and Bonus for the greater of (x) eighteen (18) months following
any such termination or (y) the balance of the Term (as if such termination had
not occurred) and provide Unnold continuation coverage under all major medical
and other health, accident, life or other disability plans or programs in which
Unnold participated immediately prior to such termination for the same period.
Notwithstanding the foregoing, the amounts otherwise payable to Unnold pursuant
to this Section 7(d) shall be subject to reduction
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(but not below zero) to the extent determined necessary by III to prevent any
payments or benefits to or for the benefit of Unnold (whether pursuant to this
Agreement or any other plan, arrangement or agreement) from being treated as a
"parachute payment" under Section 280G of the Internal Revenue Code of 1986, as
amended.
(e) If Unnold disputes the termination of his employment by III
pursuant to Section 6(a) or 6(b) herein and such dispute results in a final
determination to the effect that III did not have a proper basis for such
termination, III shall promptly pay to Unnold all payments Unnold would have
been entitled to receive had his employment hereunder had not been improperly
terminated; provided, however, that any payments or benefits under this Section
7(e) shall be reduced by the amount of any payments or benefits provided under
any other provision of Section 7 hereof.
(f) The continuation coverage under any major medical and other
health, accident, life or other disability plans and programs for the periods
provided in Section 7(a), 7(c) and 7(d) shall be provided (i) at the expense of
III and (ii) in satisfaction of III's obligation under Section 4980B of the
Internal Revenue Code (and any similar state law) with respect to the period of
time such benefits are continued hereunder.
(g) This Section 7 sets forth the only obligations of III with
respect to the termination of Unnold's employment with III, and Unnold
acknowledges that, upon the termination of his employment, he shall not be
entitled to any payments or benefits which are not explicitly provided herein.
8. Covenant Regarding Inventions and Copyrights.
Unnold shall disclose promptly to III any and all inventions,
discoveries, improvements and patentable or copyrightable works initiated,
conceived or made by him, either alone or in conjunction with others, during the
Term and related to the business or activities of III and he assigns all of his
interest therein to III or its nominee; whenever requested to do so by III,
Unnold shall execute any and all applications, assignments or other instruments
which III shall deem necessary to apply for and obtain letters patent or
copyrights of the United States or any foreign country, or otherwise protect
III's interest therein. These obligations shall continue beyond the conclusion
of the Term with respect to inventions, discoveries, improvements or
copyrightable works initiated, conceived or made by Unnold during the Term and
shall be binding upon Unnold's assigns, executors, administrators and other
legal representatives.
9. Protection of Confidential Information.
Unnold acknowledges that he has been and will be provided with
information about, and his employment by III will, throughout the Term, bring
him into close contact with, many confidential affairs of III and its
subsidiaries, including proprietary information about costs, profits, markets,
sales, products, key personnel, pricing policies, operational methods, technical
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processes and other business affairs and methods, plans for future developments
and other information not readily available to the public, all of which are
highly confidential and proprietary and all of which were developed by III at
great effort and expense. Unnold further acknowledges that the services to be
performed by him under this Agreement are of a special, unique, unusual,
extraordinary and intellectual character, that the business of III will be
conducted throughout the world (the "Territory"), that its services will be
marketed throughout the Territory, that III competes and will compete in all of
its business activities with other organizations which are located in any part
of the Territory and that the nature of the relationship of Unnold with III is
such that Unnold is capable of competing with III from nearly any location in
the Territory. In recognition of the foregoing, Unnold covenants and agrees
during the Term and for a period of five (5) years thereafter:
(i) That he will keep secret all confidential matters of III and
not disclose them to anyone outside of III, either during or after the Term,
except with III's prior written consent or, if during the Term, in the
performance of his duties hereunder, Unnold makes a good faith determination
that it is the best interest of III and to disclose such matters;
(ii) That he will not make use of any such confidential matters for
his own purposes or the benefit of anyone other than III; and
(iii) That he will deliver promptly to III on termination of this
Agreement, or at any time III may so request, all confidential memoranda, notes,
records, reports and other confidential documents (and all copies thereof)
relating to the business of III, which he may then possess or have under his
control.
10. Restriction on Competition, Interference and Solicitation.
In recognition of the considerations described in Section 9 hereof,
Unnold covenants and agrees that, during the Term and for a period of one (1)
year or such longer period of time during which Unnold is continuing to receive
compensation from the Company after such termination, Unnold will not, directly
or indirectly, (A) enter into the employ of, or render any services to, any
person, firm or corporation engaged in any business directly competitive with
the business of III in any part of the Territory in which III is actively
engaged in business on the date of termination; (B) engage in any such business
for his own account; (C) become interested in any such business as an
individual, partner, shareholder, creditor, director, officer, principal, agent,
employee, trustee, consultant, advisor, franchisee or in any other relationship
or capacity; or (D) interfere with III's relationship with, or endeavor to
employ or entice away from III any person, firm, corporation, governmental
entity or other business organization who or which is or was an employee,
customer or supplier of, or maintained a business relationship with, III at any
time (whether before or after the Term), or which III has solicited or prepared
to solicit; provided, however, that the provisions of clause (A) shall not be
deemed to preclude Unnold from engagement by a corporation some of the
activities of which are competitive with the business of III if Unnold's
engagement does not relate, directly or indirectly, to such competitive
business,
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and nothing contained in this Section 10 shall be deemed to prohibit Unnold from
acquiring or holding, solely for investment, publicly traded securities of any
corporation some of the activities of which are competitive with the business of
III so long as such securities do not, in the aggregate, constitute more than
five percent (5%) of any class or series of outstanding securities of such
corporation.
11. Specific Remedies.
For purposes of Sections 8, 9 and 10 of this Agreement, references
to III shall include all current and future majority-owned subsidiaries of III
and all current and future joint ventures in which III may from time to time be
involved. It is understood by Unnold and III that the covenants contained in
this Section 11 and in Sections 8, 9 and 10 hereof are essential elements of
this Agreement and that, but for the agreement of Unnold to comply with such
covenants, III would not have agreed to enter into this Agreement. III and
Unnold have independently consulted with their respective counsel and have been
advised concerning the reasonableness and propriety of such covenants with
specific regard to the nature of the business conducted by III and all interests
of III. Unnold agrees that the covenants of Sections 8, 9 or 10 hereof are
reasonable and valid. If Unnold commits a breach of any of the provisions of
Sections 8, 9 or 10 hereof, such breach shall be deemed to be grounds for
termination for Cause. In addition, Unnold acknowledges that III may have no
adequate remedy at law if he violates any of the terms hereof. Unnold therefore
understands and agrees that III shall have (i) the right to have such provisions
specifically enforced by any court having equity jurisdiction, it being
acknowledged and agreed that any such breach will cause irreparable injury to
III and that money damages will not provide an adequate remedy to III, and (ii)
the right to require Unnold to account for and pay over to III all compensation,
profits, monies, accruals, increments and other benefits (collectively
"Benefits") derived or received by Unnold as a result of any transaction
constituting a breach of any of the provisions of Sections 8, 9 or 10 and Unnold
hereby agrees to account for and pay over such Benefits to III.
12. Independence, Severability and Non-Exclusivity.
Each of the rights enumerated in Sections 8, 9 or 10 hereof and the
remedies enumerated in Section 11 hereof shall be independent of the others and
shall be in addition to and not in lieu of any other rights and remedies
available to III at law or in equity. If any of the covenants contained in
Sections 8, 9 or 10, or any part of any of them, is hereafter construed or
adjudicated to be invalid or unenforceable, the same shall not affect the
remainder of the covenant or covenants or right or remedies which shall be given
full effect without regard to the invalid portions. The parties intend to and do
hereby confer jurisdiction to enforce the covenants contained in Section 8, 9 or
10 and the remedies enumerated in Section 11 upon the federal and state courts
of Connecticut sitting in Fairfield County. If any of the covenants contained in
Sections 8, 9 or 10 is held to be invalid or unenforceable because of the
duration of such provision or the area covered thereby, the parties agree that
the court making such determination shall be the power to reduce the duration
and/or area of such provision and in its reduced from
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said provision shall then be enforceable. No such holding of invalidity or
unenforceability in one jurisdiction shall bar on in any way affect III's right
to the relief provided in Section 11 or otherwise in the courts of any other
state or jurisdiction within the geographical scope of such covenants as to
breaches of such covenants in such other respective states or jurisdictions,
such covenants being, for this purpose, severable into diverse and independent
covenants.
13. Disputes. If III or Unnold shall dispute any termination of Unnold's
employment hereunder or if a dispute concerning any payment hereunder shall
exist:
(a) either party shall have the right (but not the obligation), in
addition to all other rights and remedies provided by law, to compel binding,
enforceable and non-appealable arbitration of the dispute in the City of New
York under the rules of the American Arbitration Association by giving written
notice of arbitration to the other party within thirty (30) days after notice of
such dispute has been received by the party to whom notice has been given; and
(b) if such dispute (whether or not submitted to arbitration
pursuant to Section 13(a) hereof) results in a determination that (i) III did
not have the right to terminate Unnold's employment under the provisions of this
Agreement or (ii) the position taken by Unnold concerning payments to Unnold is
correct, III shall promptly pay, or if theretofore paid by Unnold, shall
promptly reimburse Unnold for, all costs and expenses (including reasonable
attorneys' fees) reasonably incurred by Unnold in connection with such dispute.
14. Successors; Binding Agreement.
In the event of a future disposition by III (whether direct or
indirect), by sale of assets or stock, merger, consolidation or otherwise of all
or substantially all of its business and/or assets in a transaction to which
Unnold consents, III will require any successor, by agreement in form and
substance satisfactory to Unnold, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that III would be required
to perform if no such disposition had taken place.
This Agreement and all rights of Unnold hereunder shall inure to the
benefit of, and be enforceable by, Unnold's personal or legal representatives,
executors, administrators, administrators cta, successors, heirs, distributees,
devisees and legatees. If Unnold should die while any amount would still be
payable to him hereunder if he had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to Unnold's estate.
15. Notices.
All notices, consents and other communications required or permitted
to be given by any party hereunder shall be in writing (including telecopy or
other similar writing) and shall be
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given be personal delivery, certified or registered mail, postage prepaid, or
telecopy (or other similar writing) as follows:
To III: Xxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attn: President
Telecopy: (000) 000-0000
With a copy to: Piper & Marbury L.L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxxxx, Esq.
Telecopy: (000) 000-0000
To Unnold: 00 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
or at such other address or telecopy number (or other similar number) as either
party may from time to time specify to the other. Any notice, consent or other
communication required or permitted to be given hereunder shall have been deemed
to be given on the date of mailing, personal delivery or telecopy or other
similar means (provided the appropriate answer back is received) thereof and
shall be conclusively presumed to have been received on the second business day
following the date of mailing or, in the case of personal delivery or telecopy
or other similar means, the day of delivery thereof, except that a change of
address shall not be effective until actually received.
16. Modifications and Waivers.
No term, provision or condition of this Agreement may be modified or
discharged unless such modification or discharge is authorized by the Board of
Directors of III and is agreed to in writing and signed by Unnold. No waiver by
either party hereto of any breach by the other party hereto of any term,
provision or condition of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
17. Entire Agreement.
This Agreement constitutes the entire understanding between the
parties hereto relating to the subject matter hereof, superseding all
negotiations, prior discussions, preliminary agreements and agreements relating
to the subject matter hereof made prior to the date hereof.
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18. Law Governing.
Except as otherwise explicitly noted, this Agreement shall be
governed by and construed in accordance with the laws of the State of
Connecticut (without giving effect to the principles of conflicts of law).
19. Invalidity.
Except as otherwise specified herein, the invalidity or
unenforceability of any term or terms of this Agreement shall not invalidate,
make unenforceable or otherwise affect any other term of this Agreement which
shall remain in full force and effect.
20. Headings.
The headings contained in this Agreement are for reference purposes
only and shall not affect the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year set forth above.
INTELLIGENT INFORMATION INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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