Contract
Exhibit
10.1
This
EMPLOYMENT AGREEMENT (this "Agreement") is made this 28th
day of
June, 2006, by and between MTM Technologies, Inc., a New York corporation
(the "Company"), and Xxxxxxx X. Xxxxxx (the "Executive").
WHEREAS,
the parties entered into an Employment Agreement, dated May 21, 2004 (the
“Original Agreement”).
WHEREAS,
the parties hereto wish to enter into a new employment agreement to employ
the
Executive as the Chief Executive Officer of the Company and to set forth the
terms and conditions of such employment.
NOW,
THEREFORE, in consideration of the mutual covenants and representations
contained herein, and for other good and valuable consideration the receipt
and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Employment
Period.
The
Company hereby employs the Executive, and the Executive agrees to serve the
Company, under the terms of this Agreement for a term commencing as of the
date
of this Agreement (the "Commencement Date") and ending on June 30, 2009 (the
“Initial Term”). Notwithstanding the foregoing, the Executive's employment
hereunder may be earlier terminated, subject to Section 4 hereof. On each
anniversary of the Commencement Date following the Initial Term, the term of
this Agreement shall automatically be extended for an additional period of
twelve (12) months provided,
however,
that
either party hereto may elect not to extend this Agreement by giving written
notice to the other party at least twelve (12) months prior to any such
anniversary date. The Initial Term and any renewal periods thereafter, until
the
termination of the Executive's employment hereunder, shall be referred to herein
as the "Employment Period."
2. Duties
and Status.
The
Company hereby engages the Executive as the Chief Executive Officer of the
Company on the terms and conditions set forth in this Agreement. Additionally,
the Company shall nominate the Executive to serve as a director on the Company's
Board of Directors (the "Board") during the Employment Period. During the
Employment Period, the Executive shall report directly to the Board and exercise
such authority, perform such executive duties and functions and discharge such
executive responsibilities as are reasonably associated with the Executive's
position, consistent with the responsibilities assigned to officers of companies
comparable to the Company, commensurate with the authority vested in the
Executive pursuant to this Agreement and consistent with the By-laws of the
Company. The Executive will render such business and professional services
in
the performance of his duties, consistent with the Executive's position within
the Company, as shall reasonably be assigned to him by the Board. During the
Employment Period, the Executive shall devote substantially all of his business
time and his full skill and efforts to the business of the Company.
3. Compensation;
Benefits and Expenses.
(a) Salary.
Subject
to this Section 3(a), during the Employment Period, the Company shall pay
to the Executive, as compensation for the performance of his duties
and
obligations
under this Agreement, a base salary at the rate of $350,000 per annum, payable
in arrears not less frequently than monthly in accordance with the normal
payroll practices of the Company. The Executive's base salary shall be subject
to review each year for possible increase by the Board in its sole discretion,
but in no event shall such base salary be decreased from its then existing
level
during the Employment Period.
(b) Bonus.
During the Employment Period, in addition to the base salary payable to the
Executive hereunder, the Executive shall also be eligible to receive, as
additional compensation, an annual bonus equal to seventy-five percent (75%)
of
his base salary as set forth in Section 3(a) hereof (the “Annual Bonus”). Such
bonus shall be payable (x) sixty-seven percent (67%) in cash (the “Cash
Portion”)and (y) thirty-three percent (33%) in common stock issued under the
Company’s equity incentive plans (the “Stock Portion”). The parties agree that
the Stock Portion shall be satisfied through the delivery of 35,000 shares
of
common stock . Notwithstanding the foregoing, the number of shares issued as
part of the Stock Portion will, if necessary, be adjusted downward to limit
the
Total Value (as defined below) of the bonus paid in any year to the amount
of
Executive’s base salary as set forth in Section 3(a) hereof. As used herein
“Total Value” shall mean the value of the Cash Portion plus the value of the
Stock Portion, where the value of the Stock Portion is determined using the
closing price of the Company’s common stock on the original date is issuance of
such shares. Such bonus will be subject to achievement of performance targets
agreed to by the Board, or the Compensation Committee thereof, and the
Executive, and shall be consistent with the targets set for the management
bonus
plan of the Company in effect from time to time for senior executives, if any.
All shares of common stock issued as part of the Stock Portion will be subject
to a one year lock-up agreement.
(c) Stock
Options.
The
Executive shall be entitled to receive awards under any stock option or equity
based incentive compensation plan or arrangement adopted by the Company during
the Employment Period for which senior executives are eligible. The level of
the
Executive's participation in any such plan or arrangement shall be determined
in
the sole discretion of the Board and the Compensation Committee thereof in
consultation with the Executive. Concurrently with the execution of this
Agreement, the Company shall grant to the Executive an option to purchase
200,000 shares of common stock on the terms set forth on Exhibit
C
attached
hereto. The exercise price for such options shall be the greater of the closing
price of the Company’s common stock on (x) the date hereof, or (y) the second
full trading day following the release of the Company’s earnings for the fiscal
year ended March 31, 2006.
(d) Vacation
and Sick Leave.
The
Executive shall be entitled to four (4) weeks paid vacation time per
calendar year and such paid sick leave as is in accordance with the normal
Company policies and practices in effect from time to time for senior
executives; provided,
however
,
that no
more than two weeks of such vacation time may be used consecutively, and
provided,
further,
that
any accrued but unused vacation time and paid sick leave remaining at the end
of
each calendar year shall be forfeited.
(e) Other
Benefits.
During
the Employment Period, the Executive shall be entitled to participate in all
of
the employee benefit plans, programs and arrangements of the Company in effect
during the Employment Period which are generally available to the most senior
executives of the Company (including, without limitation, 401(k) and group
medical insurance plans), subject to and on a basis consistent with the terms,
conditions and overall administration of such plans, programs and arrangements.
(f) Expenses.
In
addition to any amounts payable to the Executive pursuant to this
Section 3, the Company shall reimburse the Executive upon production of
accounts and vouchers
2
or
other
reasonable evidence of payment by the Executive, all in accordance with the
Company's regular procedures in effect from time to time, all reasonable and
ordinary expenses as shall have been incurred by him in the performance of
his
duties hereunder.
4. Termination
of Employment.
(a) Termination
for Cause.
The Company may terminate the Executive's employment hereunder for cause. For
purposes of this Agreement and subject to the Executive's opportunity to cure
as
provided in Section 4(c) hereof, the Company shall have "cause" to
terminate the Executive's employment hereunder if such termination shall be
the
result of:
(i) the
Executive's failure to comply in any material manner with the reasonable
policies and rules of the Company or the directives of the Board; or
(ii) the
Executive's performance of any material act of fraud or dishonesty in connection
with the performance of his duties hereunder; or
(iii) the
Executive's gross negligence or willful misconduct in the performance of his
duties hereunder; or
(iv) the
Executive's conviction for, or plea of nolo
contendere to,
a
felony or misdemeanor resulting in a jail sentence or any crime involving moral
turpitude; or
(b) Termination
for Good Reason.
The
Executive shall have the right at any time to terminate his employment with
the
Company for any reason. For purposes of this Agreement and subject to the
Company's opportunity to cure as provided in Section 4(c) hereof, the
Executive shall have "good reason" to terminate his employment hereunder if
such
termination shall be the result of:
(i) a
reduction by the Company of the Executive's base salary; or
(ii) a
material diminution during the Employment Period in the Executive's duties
or
responsibilities, as set forth in Section 2 hereof; or
(iii) the
relocation, without the Executive's prior written consent, of the Executive's
principal work location beyond 50 miles from its current location; or
(iv) the
failure to nominate the Executive to serve as a director of the Board.
(c) Notice
and Opportunity to Cure.
Notwithstanding
the provisions of Sections 4(a) and 4(b) hereof, it shall be a condition
precedent to the Company's right to terminate the Executive's employment for
"cause" and the Executive's right to terminate his employment for "good reason"
that (1) the party seeking the termination shall first have given the other
party written notice stating with reasonable specificity the reason for the
termination ("breach") and (2) if such breach is susceptible of cure or
remedy, a period of thirty days from and after the giving of such notice shall
have elapsed without the breaching party having effectively cured or remedied
such breach during such 30-day period, unless such breach cannot be cured or
remedied within thirty days, in which case the period for remedy or cure shall
be extended for a reasonable
3
time
(not
to exceed an additional thirty days) provided the breaching party has made
and
continues to make a diligent effort to effect such remedy or cure.
Notwithstanding anything to the contrary contained herein, the right to cure
set
forth in this Section 4(c) shall not apply if there are habitual or
repeated breaches by either party.
(d) Termination
Upon Death or Permanent and Total Disability.
The Employment Period shall be terminated by the death of the Executive. The
Employment Period may be terminated by the Board if the Executive shall be
rendered incapable of performing his duties to the Company by reason of any
medically determined physical or mental impairment for a period of either
(i) six (6) or more consecutive months from the first date of the
Executive's absence due to the disability or (ii) nine (9) months
during any eighteen (18) month period (a "Permanent and Total Disability").
If the Employment Period is terminated by reason of Permanent and Total
Disability of the Executive, the Company shall give 30 days' advance
written notice to that effect to the Executive. Until the effective date of
the
termination as a result of a Permanent and Total Disability, the Company shall
continue to pay to the Executive the compensation set forth in Section 3
hereof; provided,
however, that
to
the extent that the Executive receives payments pursuant to any disability
insurance policy for which the Company pays the premium, the Company may deduct
the amounts received by the Executive pursuant to that policy from the
compensation payable to him.
5. Consequences
of Termination.
(a) Without
Cause or for Good Reason. In
the event of a termination of the Executive's employment during the Employment
Period by the Company other than for "cause" (as provided for in
Section 4(a) hereof) or by the Executive for "good reason" (as provided for
in Section 4(b) hereof) or as a result of death or Permanent and Total
Disability (as provided for in Section 4(d) hereof), the Company shall
provide to the Executive (or his legal representative) (i) the rights,
payments and benefits payable at such times as set forth herein, and (ii) a
release and waiver of claims in favor of the Executive, substantially in the
form attached hereto as Exhibit A,
as
consideration for the execution and non-revocation by the Executive of a release
agreement in favor
of
the Company and its shareholders and their respective directors, officers and
employees, substantially in the form attached hereto as Exhibit B:
(i)
Salary.
A
continuance of his salary at one hundred percent (100%) of his then current
base
salary, as a severance payment, for a period equal to the greater of
(i) one (1) year from the date of termination of the Executive's
employment or (ii) the period ending on the last day of the Initial Term
(the "Severance Period"). The Executive, in his sole discretion, shall have
the
right to demand and receive such severance payments as a single, lump-sum cash
payment. Any payments pursuant to this Section 5(a)(i) shall be in
lieu of any other severance benefits to which the Executive is entitled pursuant
to any other severance plans, programs, arrangements, or policies of the
Company.
(ii)
Options.
The
impact of the Executive's termination of employment on the stock options held
by
the Executive (including, without limitation, the maximum period that any such
option shall remain exercisable) shall be governed by the applicable stock
option plan and agreement. Notwithstanding the foregoing, any stock options
granted to the Executive on or after the Commencement Date shall provide that,
upon termination of the Executive's employment by the Company other than for
"cause" (as provided for in Section 4(a) hereof) or by the Executive for
"good reason" (as provided for in Section 4(b) hereof), any unvested shares
subject to such options shall become fully
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vested
and immediately exercisable in connection with such termination.
(iii)
Other
Benefits.
During
the Severance Period, the Executive will be entitled to a continuance of
coverage under all health, life, disability and similar employee benefit plans
and programs of the Company on the same basis as the Executive was entitled
to
participate immediately prior to the Severance Period, provided that the
Executive's continued participation is possible under the general terms and
provisions of such plans and programs. In the event that the Executive's
participation in any such plan or program is barred for any reason, the Company
shall arrange to provide the Executive with benefits substantially similar
to
those which the Executive would otherwise have been entitled to receive under
such plans and programs from which his continued participation is barred;
provided,
however,
that
the aggregate cost of providing benefits to the Executive pursuant to this
Section 5(a)(iii) shall not be materially increased as a result of
providing such alternative coverage. In the event that the Executive is covered
under substitute benefit plans of another employer prior to the expiration
of
the Severance Period, the Company will no longer be obligated to continue the
respective coverages provided for in this Section 5(a)(iii).
(b) Other
Termination of Employment.
In
the event that the Executive's employment with the Company is terminated during
the Employment Period by the Company for "cause" (as provided for in
Section 4(a) hereof), or by the Executive other than for "good reason" (as
provided for in Section 4(b) hereof), the Company shall pay the Executive
(or his legal representative) any earned but unpaid salary amounts and any
unreimbursed expenses through the Executive's final date of employment with
the
Company, and the Company shall have no further obligations to the Executive,
except under the plans, programs and arrangements described in Section 3(e)
hereof in accordance with the terms of such plans.
(c) Withholding
of Taxes.
All
payments required to be made by the Company to the Executive under this
Agreement shall be subject to the withholding of such amounts, if any, relating
to tax, excise tax and other payroll deductions as the Company may reasonably
determine it should withhold pursuant to any applicable law or regulation.
(d) No
Other Obligations.
The
benefits payable to the Executive under this Agreement are not in lieu of any
benefits payable under any employee benefit plan, program or arrangement of
the
Company, except as provided specifically herein, and upon termination, the
Executive will receive
such benefits or payments, if any, as he may be entitled to receive pursuant
to
the terms of such plans, programs and arrangements. Except for the obligations
of the Company provided by this Agreement (including, without limitation,
pursuant to the preceding sentence hereof), the Company shall have no further
obligations to the Executive upon his termination of employment.
(e) Reduction
for "Parachute Payments".
Notwithstanding
anything in this Agreement to the contrary, any amounts payable hereunder to
the
Executive in connection with a change in control, as well as any other
"parachute payments," as such term is defined under Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code"), payable under any other
plans, agreements or policies of the Company, shall be reduced to the extent
necessary to assure that the Executive does not become subject to the excess
parachute payment excise tax under Section 4999 of the Code and the Company
does not lose all or part of its compensation deduction for such payments.
6. Indemnity.
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The
Company shall, during his employment with the Company and thereafter, indemnify
the Executive to the fullest extent permitted by law and by its Certificate
of
Incorporation and By-laws and shall assure that the Executive is covered by
the
Company's directors' and officers' insurance policies and any other insurance
policies that protect employees, as in effect from time to time.
7. Restrictive
Covenants.
(a)
Proprietary
Information.
(i) The
Executive agrees that
all information and know-how, whether or not in writing, of a private, secret
or
confidential nature concerning the business or financial affairs of the Company
or any of the Company's Affiliates is and shall be the exclusive property of
the
Company or the Company's Affiliates. Such information and know-how shall
include, but not be limited to, inventions, products, processes, methods,
techniques, formulas, compositions, compounds, projects, developments, plans,
research data, clinical data, financial data, personnel data, computer programs,
and customer and supplier lists (collectively, "Proprietary Information.").
Except in connection with, and on a basis consistent with, the performance
of
his duties hereunder, the Executive shall not disclose any Proprietary
Information to others outside the Company or the Company's Affiliates or use
the
same for any unauthorized purposes without written approval by the Board, either
during or after the Employment Period.
(ii) The
Executive agrees that
all files, letters, memoranda, reports, records, data, sketches, drawings,
laboratory notebooks, program listings, customer lists, customer solicitations
or other written, photographic, or other tangible material containing
Proprietary Information, whether created by the Executive or others, which
shall
come into his custody or possession, shall be and are the exclusive property
of
the Company or the Company's Affiliates to be used by the Executive only in
the
performance of his duties for the Company. The Executive agrees to deliver
to
the Company upon the expiration of the Employment Period such material
containing Proprietary Information.
(iii) The
Executive agrees that
his obligation not to disclose or use information, know-how and records of
the
types set forth in paragraphs (i) and (ii) above, also extends to such
types of information, know-how, records and tangible property of customers
of
the Company or the Company's Affiliates or suppliers to the Company or the
Company's Affiliates or other third parties who may have disclosed or entrusted
the same to the Company or the Company's Affiliates or to the Executive in
the
course of the Company's business.
(iv) Notwithstanding
the
foregoing, such Proprietary Information shall not include information which
(A) is or becomes generally available or known to the public, other than as
a result of any disclosure by the Executive in violation hereof; or (B) is
or becomes available to the Executive on a non-confidential basis from any
source other than the Company, other than any such source that the Executive
knows is prohibited by a legal, contractual, or fiduciary obligation to the
Company from disclosing such information.
(v) Other
than in connection
with any requirements pursuant to applicable "whistleblower" statutes, in the
event that the Executive is requested pursuant to, or
6
becomes
compelled by, any applicable law, regulation, or legal process to disclose
any
Proprietary Information, the Executive shall provide the Company with prompt
written notice thereof so that the Company may seek a protective order or other
appropriate remedy or, in the Company's sole and absolute discretion, waive
compliance with the terms hereof. In the event that no such protective order
or
other remedy is obtained, or the Company waives compliance with the terms
hereof, the Executive shall furnish only that portion of such Proprietary
Information which the Executive is advised by counsel is legally required.
The
Executive will cooperate with the Company, at the Company's sole cost and
expense, in its efforts to obtain reliable assurance that confidential treatment
will be accorded such Proprietary Information.
(b) Developments.
(i) The
Executive shall 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
the Executive or under his direction or jointly with others during the
Employment Period, whether or not during normal working hours or on the premises
of the Company or the Company's Affiliates (collectively, "Developments").
(ii) The
Executive agrees to
assign and does hereby assign to the Company (or any 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.
The
Executive also hereby waives all claims to moral rights in any Developments.
(iii) Notwithstanding
anything
to the contrary contained herein, the provisions of Sections 7(b)(i) and
7(b)(ii) hereof shall not apply to Developments which consist of products
(and not of services) which do not relate to the present or planned business
or
research and development of the Company or the Company's Affiliates and which
are made and conceived by the Executive not during normal working hours, not
on
the premises of the Company or the Company's Affiliates and not using the tools,
devices, equipment or personnel of the Company or the Company's Affiliates
or
Proprietary Information.
(iv) The
Executive agrees to
cooperate fully with the Company or the Company's Affiliates, both during and
after the Employment Period, with respect to the procurement, maintenance and
enforcement of copyrights and patents (both in the United States and foreign
countries) relating to Developments. The Executive shall sign all papers,
including, without limitation, copyright applications, patent applications,
declarations, oaths, formal assignments, assignment of priority rights, and
powers of attorney, which the Company or the Company's Affiliates may deem
reasonably necessary or desirable in order to protect their rights and interests
in any Development.
(c) Other
Agreements.
The
Executive 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, other
than agreements with the Company's Affiliates, (i) to keep in confidence
proprietary information, knowledge or data acquired by him in confidence or
in
trust prior to his employment with
the
Company, (ii) to refrain from competing, directly or indirectly, with the
business of his previous employer or any other party, and (iii) to refrain
from soliciting the employment of any employees of his previous employer or
any
other party.
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(d) Non-Competition
and Non-Solicitation.
During
the Executive's employment hereunder and for a period of: (i) two
(2) years thereafter upon the Executive's termination of employment by
giving notice of non-renewal as set forth in Section 1 hereto,
(ii) one (1) year thereafter upon the Company's termination of the
Executive's employment by giving notice of non-renewal as set forth in
Section 1 hereto, or (iii) two (2) years thereafter upon the
Executive's termination of employment for any reason other than those set forth
in (i) and (ii), without the prior written consent of the Company, the
Executive shall not engage (whether as an employee, consultant, director or
independent contractor) in any Business Activities on behalf of any person,
firm
or corporation, and the Executive shall not acquire any financial interest
(except for equity interests in publicly-held companies that will not be
significant and that, in any event, will not exceed five percent (5%) of equity
of that company) in any entity which engages in Business Activities within
200
miles of any of the Company's offices in operation on the Commencement Date
and
within 100 miles of any office of the Company established after the Commencement
Date. During the period that the above noncompetition restriction applies,
the
Executive shall not, without the written consent of the Company:
(i) solicit any employee of the Company or any of the Company's Affiliates
to terminate his employment, or (ii) solicit any customers, partners,
resellers, vendors or suppliers of the Company on behalf of any individual
or
entity other than the Company or its Affiliates. As used herein, the term
"Business Activities" shall mean conduct of business as a computer and
communications technology management and/or consulting business providing
information technology networking and data center services, including secure
access, voice over internet protocol (“VOIP”), storage, security, messaging
solutions, network and mainframe connectivity consulting, remote network
monitoring and management, network and system diagnostics, product maintenance
and support, training, and product procurement solutions
(e) Enforcement.
The
Company shall be entitled to seek a restraining order or injunction in any
court
of competent jurisdiction to prevent any continuation of any violation of the
provisions of this Section 7.
(f) Affiliates. For
purposes hereof, the Company's Affiliates shall mean any individual or entity
that directly or indirectly, through one or more intermediaries, controls,
is
controlled by or is under common control with the Company. For purposes of
this
definition, "control" means the power to direct the management and policies
of
another, whether through the ownership of voting securities, by contract or
otherwise.
8.
Notice.
All
notices, requests and other communications pursuant to this Agreement shall
be
in writing and shall be deemed to have been duly given, if delivered in person
against written receipt therefor, or by overnight courier, or sent by express,
registered or certified mail, postage prepaid, addressed as follows:
|
If
to the Executive:
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Xxxxxxx
X. Xxxxxx
00
Xxxx Xxxx
Xxxxxxxxx,
XX 00000
|
|
If
to the Company:
|
0000
Xxxx Xxxxx Xxxx
Xxxxxxxx,
XX 00000
Attn:
General Counsel
|
8
Either party may, by written notice to the other, change the address to which notices to such party are to be delivered or mailed.
9. Dispute
Resolution; Mediation and Arbitration.
Except
as
specifically provided herein, any dispute or controversy arising under or in
connection with this Agreement shall be, upon the demand of either party,
subject to a non-binding mediation proceeding before a mediator on the panel
of
the CPR Institute for Dispute Resolution, such mediator to
be
agreed upon by the parties. If a mediator is not agreed upon or if mediation
is
not successful, the matter shall be settled exclusively by arbitration,
conducted before a single arbitrator mutually selected by the parties, in the
State of New York, in accordance with the rules of the American Arbitration
Association then in effect. If the parties are unable to agree on a single
arbitrator, each party shall select an arbitrator and the two arbitrators
selected by the parties shall select a third arbitrator. If three arbitrators
are selected, they shall act by majority vote. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. Each party shall bear
their
own costs and expenses of any such mediation or arbitration proceeding and
shall
split evenly any common costs; provided, however, that if the dispute concerns
the issue of termination for "cause" or resignation for "good reason," the
non-prevailing party shall pay for all of the prevailing party's costs and
expenses, including legal fees relating to such mediation or arbitration
proceeding.
10. Waiver
of Breach.
Any
waiver of any breach of this Agreement shall not be construed to be a continuing
waiver or consent to any subsequent breach on the part either of the Executive
or of the Company.
11. Non-Assignment;
Successors.
Neither
party hereto may assign his or its rights or delegate his or its duties under
this Agreement without the prior written consent of the other party;
provided
,
however
,
that
(i) this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the Company upon any sale of all or substantially
all
of the Company's assets, or upon any merger, consolidation or reorganization
of
the Company with or into any other corporation, all as though such successors
and assigns of the Company and their respective successors and assigns were
the
Company; and (ii) this Agreement shall inure to the benefit of and be
binding upon the heirs, assigns or designees of the Executive to the extent
of
any payments due to them hereunder. As used in this Agreement, the term
"Company" shall be deemed to refer to any such successor or assign of the
Company referred to in the preceding sentence.
12. Severability.
To
the
extent any provision of this Agreement or portion thereof shall be invalid
or
unenforceable, it shall be considered deleted therefrom and the remainder of
such provision and of this Agreement shall be unaffected and shall continue
in
full force and effect.
13. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original but all of which together will constitute one and
the
same instrument.
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14. Governing
Law.
This
Agreement shall be construed, interpreted and enforced in accordance with the
laws of the State of New York, without giving effect to the choice of law
principles thereof.
15. Entire
Agreement.
This
Agreement constitutes the entire agreement by the Company and the Executive
with
respect to the subject matter hereof and except as specifically provided herein,
supersedes and terminates any and all prior agreements or understandings between
the Executive and the Company, with respect to the subject matter hereof,
including the Original Agreement, whether written or oral; provided that the
foregoing shall not apply to any stock option agreements and restricted stock
unit agreements between the Company and the Executive which agreements shall
continue in full force and effect. This Agreement may be amended or modified
only by a written instrument executed by the Executive and the Company.
[SIGNATURES
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of June
28,
2006.
| /s/ Xxxxxxx X. Xxxxxx | ||
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Xxxxxxx
X. Xxxxxx
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By:
|
/s/
Xxxx X. Xxxxxx
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Print
Name: Xxxx X. Xxxxxx
Print
Title: SVP & General
Counsel
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RELEASE
OF CLAIMS AND COVENANT NOT TO XXX
This
RELEASE OF CLAIMS AND COVENANT NOT TO XXX is executed and delivered by MTM
Technologies, Inc., a New York corporation (the "Company"), to Xxxxxxx X.
Xxxxxx (the "Executive").
Pursuant
to the provisions of Section 5(a) of the employment agreement between the
Company and the Executive dated June __, 2006 (the " Employment
Agreement ")
the
Company hereby agrees as follows:
The
Company and its affiliates release and forever discharge the Executive from,
and
covenant not to xxx or proceed against the Executive on the basis of, any and
all past or present causes of action, suits, agreements or other claims which
the Company or its affiliates have against the Executive upon or by reason
of
any matter, cause or thing whatsoever, including, but not limited to, any
matters arising out of his employment by the Company and the cessation of said
employment. This release shall not, however, constitute a waiver of any of
the
Company's rights under the Employment Agreement. The Company hereby covenants
that it has not transferred or assigned to any person or entity any of the
claims that are subject to this release and covenant.
This
RELEASE OF CLAIMS AND COVENANT NOT TO XXX is executed by the Company and
delivered to the Executive on ____________, 200__
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Name:______________________________
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Title:_______________________________
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Exhibit B
RELEASE
AGREEMENT
This
RELEASE AGREEMENT (the " Agreement
")
is
made as of ____________,
20__
by and
between MTM Technologies, Inc., a New York corporation (the " Company
"),
and
Xxxxxxx X. Xxxxxx (the " Executive
").
A. The
Company and the Executive are parties to an Employment Agreement dated June
__,
2006 (the " Employment
Agreement ").
Capitalized terms that are not otherwise defined herein shall have the meanings
ascribed to such terms in the Employment Agreement.
B. Effective
as of ____________,
20__
(the " Separation
Date "),
the
Executive's employment with the Company was or will be terminated.
C. The
Company is not obligated to pay the Executive any additional compensation or
benefits other than that which has been earned as of the Executive's Separation
Date and other than that which is set forth in the Employment Agreement. This
Agreement is the Release Agreement referenced in the Employment Agreement and
the payment of the severance benefits set forth in the Employment Agreement
is
conditioned upon the execution and delivery by the Executive of this Agreement.
NOW,
THEREFORE, in return for good and valuable consideration and in consideration
of
the premises and the mutual promises made hereafter, the Executive and the
Company agree as follows:
1. Employment
Agreement.
Subject
to the terms and conditions of the Employment Agreement; (a) the Company
agrees to pay the Executive the severance payments and to otherwise comply
with
the provisions of the Employment Agreement, as the case may be, and (b) the
Executive agrees to comply with the restrictive covenants in Section 7 of
the Employment Agreement and to otherwise comply with the provisions of the
Employment Agreement.
2. Acknowledgment.
The
Executive and the Company acknowledge that the amounts to be paid pursuant
to
the Employment Agreement are in excess of any earned wages or benefits due
and
owing the Executive through his Separation Date.
3. Release. In
exchange for the good and valuable consideration set forth in Section 1 of
this Agreement, the Executive, on behalf of himself, his heirs, executors and
assigns, releases, waives and discharges any and all manner of action, causes
of
action, claims, rights, charges, suits, damages, debts, demands, obligations,
attorneys' fees, or any and all other liabilities or claims of whatsoever
nature, whether in law or in equity, known or unknown, including, but not
limited to, any claim and/or claim of damages or other relief for tort, breach
of contract, personal injury, negligence, age discrimination under The Age
Discrimination In Employment Act of 1967, any alleged violation of the Civil
Rights Acts of 1964 and 1991, the
Equal
Pay
Act of 1963, the Rehabilitation Act of 1973, the Older Workers Benefit
Protection Act of 1990, the Americans with Disabilities Act of 1990, the Family
and Medical Leave Act of 1993, any employment discrimination prohibited by
other
federal, state or local laws, including, but not limited to, sex, race, national
origin, marital status, age, handicap, height, weight, or religious
discrimination, and any other claims for unlawful employment practices which
the
Executive has claimed or may claim or could claim in any local, state or federal
forum, against the Company, its shareholders and their respective directors,
officers, employees, successors and assigns, affiliates and all others, as
a
result of the Executive's employment at, and separation of employment from,
the
Company; provided
that ,
the
Executive and the Company retain the right to enforce this Agreement and the
provisions of Section 5(a) of the Employment Agreement. The Executive
hereby covenants that he has
not
transferred or assigned to any person or entity any of the claims that are
subject to this release and covenant.
4. Irrevocable
Bar.
The
parties intend that this Agreement will irrevocably bar any action or claim
whatsoever by the Executive against the Company for any resultant injuries
or
damages, whether known or unknown, sustained or to be sustained, as a result
of
any of the Company's acts, omissions and conduct having occurred up to the
present date, including, but not limited to, the Executive's employment with
the
Company and the termination of that employment, other than those concerning
this
Agreement and the provisions of Section 5(a) of the Employment Agreement.
5. Rights
or Claims Arising After the Date Hereof.
The
Executive and the Company understand that the Executive is not waiving rights
or
claims that may arise as a result of any act, omission or conduct of the Company
occurring after the date this Agreement is executed.
6. Review
of Agreement.
The
Executive understands and agrees that he has read this Agreement carefully
and
understands all of its terms.
7. Advice
to Consult Attorney.
The
Executive understands and agrees that he is advised to consult with an attorney
prior to executing this Agreement.
8. Period
within which to Consider Agreement.
The
Executive understands and agrees that he has been given 21 days (or more)
within which to consider this Agreement.
9. Revocation.
The
Executive understands and agrees that he may revoke this Agreement for a period
of seven (7) calendar days following the execution of this Agreement.
Neither this Agreement nor the Company's obligations under Section 5(a) of
the Employment Agreement shall be effective until this revocation period has
expired (at which time such obligations shall be effective, retroactive to
the
time contemplated in the Employment Agreement). Without limiting the generality
of the foregoing, the provisions of Section 7 of the Employment Agreement
(relative to restrictive covenants) shall not be terminated or otherwise
affected by any revocation of this Agreement. The Executive understands that
any
revocation, to be effective, must be in writing and received, within seven
(7) days of execution of this Agreement, by the Company at its principal
executive offices.
10. Voluntary
Action; No Reliance.
In
agreeing to sign this Agreement, the Executive is doing so completely
voluntarily and agrees that he has not relied on any oral statements or
explanations made by the Company or its representatives.
11. Nondisclosure.
Both
parties agree not to disclose the terms of this Agreement
to
any
third party, except as is required by law, or as is necessary for purposes
of
securing counsel from either parties' attorneys or accountants.
12. No
Disparaging Statements.
The
Executive and the Company agree not to make any disparaging statements about
the
other.
13. Full
Accord and Satisfaction.
This
Agreement is in full accord and satisfaction and compromise of the claims of
the
Executive and the Company and is not to be construed as an admission of
liability on the part of the Company.
14. Miscellaneous.
The
headings in this Agreement are inserted for convenience of reference only and
shall not be a part of or control or affect the meaning of any provision hereof.
This Agreement maybe executed in counterparts, each of which shall be deemed
an
original but all of which together shall constitute one and the same instrument,
and shall bind and shall inure to the benefit of the parties hereto, and their
respective successors and assigns. Copies (photostatic, facsimile or otherwise)
of this Agreement and signatures hereto shall be deemed to be originals and
may
be relied on to the same extent as the manually-signed originals. This Agreement
shall be governed by, and construed in accordance with, the laws of the State
of
New York.
15. Entire
Agreement, Modification.
This
Agreement contains the entire agreement between the Executive and the Company
with respect to the subject matter hereof. Any modification of this Agreement
must be made in writing and signed by the Executive and an officer specifically
authorized to do so by the Board of Directors of the Company.
[SIGNATURES
ON NEXT PAGE]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first written above.
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Witness:
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| ________________________________ | ________________________________ | |
| Xxxxxxx X. Xxxxxx | ||
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By:
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Name:________________________________
Print
Title:_________________________________
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Exhibit
C
2004
EQUITY INCENTIVE PLAN
STOCK
OPTION AWARD AGREEMENT
MTM
Technologies, Inc., a New York corporation formerly known as
Micros-to-Mainframes, Inc. (the "Company"), pursuant to the
Micros-to-Mainframes, Inc. 2004 Equity Incentive Plan (the "Plan"), has granted
to Xxxxxxx X. Xxxxxx (the "Optionee") a stock option (the "Option") to purchase
a total of 200,000 shares (the "Shares") of the common stock, par value $.01
per
share (the "Common Stock"), of the Company, at the exercise price of $[●] per
Share (the "Exercise Price"), on the terms and conditions set forth herein
and,
in all respects, subject to the terms and conditions of the Plan. The date
of
grant of the Option is June 28, 2006 (the "Date of Grant"). The Option is
intended to be an incentive stock option ("ISO") within the meaning of Section
422 of the Internal Revenue Code of 1986, as amended (the "Code"); provided,
however, to the extent that the aggregate fair market value of the Common Stock
with respect to which ISO's are exercisable for the first time by Optionee
during any calendar year under all plans of the Company and its Parent and
all
subsidiaries exceed $100,000, only that portion of the Option in excess of
such
$100,000 limitation shall be treated as an option that does not qualify as
an
ISO under the Code. Unless otherwise defined herein, capitalized terms defined
in the Plan shall have the same defined meanings herein.
1.
Duration.
Subject
to the earlier termination as provided herein or under the Plan, the Option
shall expire at the close of business on June 28, 2016 (the “Termination
Date”).
2.
Written Notice of Exercise.
The
Option may be exercised only by delivery to the General Counsel or Secretary
of
the Company, the Company’s principal executive offices, of a written notice of
exercise substantially in the form described in section 8 hereof.
3.
Anti-Dilution Provisions.
(a)
If there is any stock dividend, stock split, or combination of shares of Common
Stock, the number and amount of Shares then subject to the Option shall be
proportionately and appropriately adjusted as determined by the Committee,
whose
determination shall be final, conclusive and binding upon Optionee and the
Company.
(b)
If there is any other change in the Common Stock, including a
recapitalization, reorganization, sale or exchange of assets, exchange of
shares, offering of subscription rights, or a merger or consolidation, whether
or not the Company is the surviving corporation, an adjustment, if any, shall
be
made in the Shares then subject to the Option as the Board or Committee may
deem
equitable, and whose determination shall be final, conclusive and binding upon
Optionee and the Company. Failure of the Board or the Committee to provide
for
an adjustment pursuant to this subparagraph prior to the effective date of
any
Company action referred to herein shall be conclusive evidence that no
adjustment is required in consequence of such action.
(c)
If the Company is merged into or consolidated with any other corporation and
the
Company is not the surviving corporation, or if it sells all or substantially
all of its assets to any other corporation, then either (i) the Company shall
cause provisions to be made for the continuance of the Option after such event,
or for the substitution for the Option of an option covering the number and
class of securities which the Optionee would have been entitled to receive
in
such merger or consolidation by virtue of such sale if the Optionee has been
the
holder of record of a number of shares of Common Stock equal to the number
of
Shares covered by the unexercised portion of the Option, or (ii) the Company
shall give to Optionee written notice of its election not to cause such
provision to be made and the Option shall become exercisable in full (or, a
the
election of the Optionee, in part) at any time during a period of forty-five
(45) days, to be designated by the Company, ending not more than ten (10) days
prior to the effective date of the merger, consolidation or sale, in which
case
the Option shall not be exercisable to any extent after the expiration of such
forty-five (45) day period. In no event, however, shall the Option be
exercisable after the Termination Date.
4.
Investment Representation and Legend Certificates.
Optionee
acknowledges and agrees that, for any period in which a registration statement
with respect to the Option and/or Shares under the Securities Act, is not
effective, Optionee shall hold the Option and will purchase and/or own the
Shares for investment and not for resale or distribution. The Company shall
have
the right to place upon the face and/or reverse side of any stock certificate
or
certificates evidencing the Shares such legend as the Committee may prescribe
for the purpose of preventing disposition of such Shares in violation of the
Securities Act.
5.
Non-Transferability.
The
Option shall not be transferable by Optionee other than by will or by the laws
of descent or distribution, and is exercisable during the lifetime of Optionee
only by Optionee. The terms of this agreement shall be binding upon the
executors, administrators, heirs, successors and assigns of
Optionee.
6.
Certain Rights Not Conferred by Option.
Optionee
shall not, by virtue of holding the Option, be entitled to any rights of a
shareholder in the Company.
7.
Expenses.
The
Company shall pay all original issue and transfer taxes with respect to the
issuance of the Shares pursuant hereto and all other fees and expenses
necessarily incurred by the Company in connection therewith.
8.
Exercise of Options.
(a)
The Option shall become exercisable as follows:
(i)
On the first anniversary of the Date of Grant, the Option shall become
exercisable to the extent of 50,000
Shares;
(ii)
On
the second anniversary of the Date of Grant, the Option shall become exercisable
to the extent of 50,000 Shares (in addition to any Shares made exercisable
pursuant to subparagraph (a)(i) of this section 8);
(iii)
On the third anniversary of the Date of Grant, the Option shall become
exercisable to the extent of 50,000 Shares (in addition to any Shares made
exercisable pursuant to subparagraphs (a)(i) and a(ii) of this Section 8);
and
(iv)
On the fourth anniversary of the Date of Grant, the Option shall become
exercisable to the extent of 50,000 Shares (in addition to any Shares made
exercisable pursuant to subparagraphs (a)(i), (a)(ii) and (a)(iii) of this
section 8).
(b)
Notwithstanding the exercisability schedule set forth in paragraph (a) of this
section 8, the Option shall become fully exercisable, and shall remain
exercisable up to and including the Termination Date in the event of either
(i)
the termination of Optionee’s employment by the Company for any reason other
than termination by the Company for “cause” or (ii) termination of Optionee’s
employment by Optionee for “good reason” as such terms are defined in the
Employment Agreement, dated June 28, 2006 (the “Employment Agreement”), between
the Company and Optionee, as in effect on the Date of Grant without giving
effect to any termination, amendment or modification of the Employment Agreement
after the Date of Grant that may affect the definitions of “cause” and/or “good
reason” contained in the Employment Agreement. If, as a result of such a
termination of employment event and to the extent applicable under the Code,
the
Option no longer qualifies as an ISO, the Option (or such applicable portion)
shall be treated as an option that does not qualify as an ISO under the
Code.
(c)
The Option shall be exercisable, in whole or part and from time to time, by
written notice of such exercise, delivered to the General Counsel or Secretary
of the Company, at the Company's principal office by personal delivery, against
written receipt therefor, or by pre-paid, certified or registered mail, return
receipt requested. Such notice shall specify the number of Shares for which
the
Option is being exercised (which number, if less than all of the Shares then
subject to exercise, shall be fifty (50) or an integral multiple thereof) and
shall be accompanied by payment of the full exercise price for the Shares for
which the Option is being exercised.
(d)
The form of payment of the Exercise Price for Shares purchased pursuant to
the
Option shall consist of (i) cash, (ii) check (subject to collection), (iii)
by
any of the methods enumerated in paragraphs (a), (b), (d) and/or (e) of section
10.1 of the Plan or (iv) any combination of such methods of
payment.
(e)
No Shares shall be delivered upon exercise of the Option until all laws, rules
and regulations which the Committee may deem applicable have been complied
with.
If a registration statement under the Securities Act is not then in effect
with
respect to the shares issuable upon such exercise, the Company may require
as a
condition precedent that Optionee, upon exercising the Option, deliver to the
Company a written representation and undertaking, satisfactory in form and
substance to the Committee, that, among other things, Optionee is acquiring
the
shares for her own account for investment and not with a view to the
distribution thereof.
(f)
Optionee shall not be considered a record holder of the Shares so purchased
for
any purpose until the date on which Optionee is actually recorded as the holder
of such Shares in the records of the Company.
(g)
In the event of (x) Optionee's termination for “cause” (as defined in the
Employment Agreement as in effect on the Date of Grant without giving effect
to
any termination, amendment or modification of the Employment Agreement after
the
Date of Grant that may affect the definition of “cause” contained in the
Employment Agreement), (y) Optionee's voluntary termination of Optionee's
employment with the Company other than for “good reason” (as
defined
in the Employment Agreement as in effect on the Date of Grant without giving
effect to any termination, amendment or modification of the Employment Agreement
after the Date of Grant that may affect the definition of “good reason”
contained in the Employment Agreement), or (z) Optionee's death or Disability,
the exercisability of the Option shall be subject to the provisions of section
5.7 of the Plan.
9.
Acceptance of the Terms and Conditions of the Plan.
The
acceptance by Optionee of this Stock Option Award Agreement and the Option
shall
constitute the acceptance of and agreement to all of the terms and conditions
contained herein and in the Plan.
10.
Continued Employment.
Nothing
herein shall be deemed to create any employment or guaranty of continued
employment or limit in any way the Company's right to terminate Optionee's
employment at any time.
11.
Early Disposition of Stock.
Optionee
understands that if Optionee disposes of any Shares received under the Option
within two years after the Date of Grant or within one year after such Shares
were transferred to Optionee, Optionee may be treated for federal and state
income tax purposes as having received ordinary income at the time of such
disposition as determined in accordance with the Code and applicable state
law.
Optionee hereby agrees to notify the Company in writing within thirty days
after
the date of any such disposition. Optionee authorizes the Company to withhold
tax from Optionee's current compensation with respect to any income recognized
as a result of any such disposition.
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By:
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Name:
Xxxx X. Xxxxxx
Title:
SVP & General Counsel
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OPTIONEE
ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS STOCK OPTION AWARD AGREEMENT,
NOR
IN THE PLAN WHICH IS INCORPORATED HEREIN BY REFERENCE, SHALL CONFER UPON
OPTIONEE ANY RIGHT WITH RESPECT TO CONTINUATION OF EMPLOYMENT BY THE COMPANY,
NOR SHALL IT INTERFERE IN ANY WAY WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT
TO TERMINATE EMPLOYMENT AT ANY TIME, WITH OR WITHOUT CAUSE.
Optionee
acknowledges receipt of a copy of the Plan and certain information related
thereto and represents that Optionee is familiar with the terms and provisions
thereof, and hereby accepts the Option subject to all of the terms and
provisions thereof. Optionee has reviewed the Plan and this agreement in their
entirety, has had an opportunity to obtain the advice of counsel prior to
executing this agreement and fully understands all of the terms and provisions
of the Option and this agreement. Optionee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Committee upon
any
questions rising under the Plan. Optionee further agrees to notify the Company
upon any change in the residence address indicated below.
Accepted
and agreed
as
of the
Date of Grant:
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By:
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Name:
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Xxxxxxx
X. Xxxxxx
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Address:
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