EXHIBIT 10.33
EMPLOYMENT AGREEMENT
--------------------
This Agreement made and entered into as of the 5th day of November , 1999,
by and between INTERLIANT, Inc. (formerly Sage Networks, Inc.), a Delaware
corporation, having a place of business at Xxx Xxxxxxxxxxxxxx Xxxx, Xxxxxxxx, XX
00000 ("Employer"), and, Xxxxxxx X. Xxxxxx, having an address at 00 Xxxxxxxx
Xxxx (mailing address: X.X. Xxx 0000), Xxxxxxxxx, XX 00000-0000 ("Employee").
WITNESSETH:
-----------
WHEREAS, Employer is engaged in the Internet hosting and related services
business; and
WHEREAS, Employer desires to employ Employee as Chief Financial Officer of
Employer, and Employee desires to be so employed by Employer, all pursuant to
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
and covenants herein contained, it is agreed as follows:
1. EMPLOYMENT: DUTIES
-------------------
(a) Employer hereby agrees to employ Employee, and Employee hereby
agrees to accept employment during the term hereof as Chief Financial Officer of
Employer, and shall perform such services as are customarily performed by
persons holding such office and shall be subject at all times to the direction
of the designee of the Board of Directors of Employer. Nothing herein contained
shall be construed as, including, but not limited to (i) preventing Employee
from investing his personal assets in any business, provided such business
venture or business does not compete with Employer or conflict with Employee's
duties and obligations as an officer and director of the Employer, or (ii)
preventing Employee from purchasing securities in any corporation whose
securities are regularly publicly traded, if such purchases shall not result in
his owning beneficially at any time 5% or more of the equity securities of any
corporation engaged in a business which is competitive to that of Employer.
2. TERM
----
Employee's employment hereunder shall be for a term commencing
November 5, 1999 and ending on November 5, 2001. The Agreement shall be
automatically extended from month to month thereafter unless either party gives
not less than thirty (30) days written notice to the other that such party
elects to have the Agreement terminated effective at the end of the initial or
then current renewal term.
3. COMPENSATION
------------
(a) As compensation for the performance of his duties on behalf of
Employer, Employer shall pay Employee a salary at the rate of Two Hundred
Thousand Dollars ($200,000.00) per annum, or at a rate as adjusted from time to
time to reflect changes in Employee's compensation, payable in installments in
accordance with the usual practice of the Employer.
(b) Employer shall reimburse Employee for the expenses incurred by
Employee in connection with his duties hereunder upon presentation by Employee
of the details of vouchers for such expenses in accordance with customary
Employer practice.
(c) Employee shall be entitled to participate in all retirement, life
insurance, medical insurance, disability insurance, vacation, savings and other
employee benefit plans generally available to the senior officers of the
Company, so long as such benefits comply with applicable law (including without
limitation the Internal Revenue Code of 1986, as amended, and ERISA).
4. NON-COMPETITION
---------------
(a) During the term of this Agreement and for a period of twenty-four
(24) months from the date of termination of his employment hereunder for
whatever reason, Employee agrees that he will not solicit any customers who are
presently or may hereafter become customers of Employer unless such solicitation
is entirely unrelated to Employer's business, or compete in any way with
Employer alone or together with others in which Employer is engaged in business
at the time of termination of employment.
(b) Subsequent to the expiration or termination of this Agreement,
Employee will not interfere with or disrupt or attempt to disrupt Employer's
business relationship with its customers or suppliers or solicit the employees
or Employer.
(c) During the term of this Agreement and for a period of twenty-four
(24) months from the date of termination of his employment hereunder for
whatever reason, Employee will not disclose or use or enable anyone else to use
any information or data which may be obtained by him or available to him during
the term of employment.
(d) In the event that Employee breaches any provisions of this
paragraph or there is a threatened breach, then, in addition to any other rights
which Employer may have, Employer shall be entitled to injunctive relief to
enforce the restrictions contained herein. In the event that an actual
proceeding is brought in equity to enforce the provisions of this paragraph,
Employee shall not urge as a defense that there is an adequate remedy at law nor
shall Employer be prevented from seeking any other remedies which may be
available.
2
(e) The existence of any claim or cause of action by Employee against
Employer, whether predicated upon this Agreement or otherwise, shall not
constitute a defense to the enforcement by Employer of the foregoing restrictive
covenants but shall be litigated separately.
5. TERMINATION
-----------
(a) Anything to the contrary notwithstanding, this Agreement shall
terminate 30 days after the Employee's (i) death or (ii) disability for a period
of not less than twenty-six consecutive weeks; provided, however, that the
provisions of Section 6 hereof shall remain in full force and effect through the
end of the term hereof.
(b) Employee's employment hereunder may also be terminated by the
Employer before the expiration of the term hereof only for cause as herein
defined. "Cause" shall mean only one or both of the following occurrences:
(i) The Employee's conviction of a felony by a court of competent
jurisdiction (which conviction, through lapse of time or otherwise, is
not subject to appeal); or
(ii) The Employee's commission of an act of fraud or embezzlement
upon the Employer.
6. SEVERANCE
---------
In the event of termination of employment of Employee by Employer
before the expiration of the term hereof, except when such termination is in
accordance with the provisions of paragraph 5(a) or 5(b) hereof, Employer will
provide Employee with severance pay in an amount equal to two times Employee's
annual compensation, which shall be payable in a lump sum, discounted based on
the prime rate of Chase Bank then in effect, which lump sum shall be payable
within 30 days of the date of termination. Employer shall also continue to
provide to Employee the retirement benefits, life insurance, medical insurance
and disability insurance pursuant to Section 3(d) through the end of the term
hereof.
In the event of termination of employment of Employee before the
expiration of the term hereof pursuant to the provisions of paragraph 5(a)
hereof, Employer will: (i) provide Employee (or Employee's estate) with
severance pay in an amount equal to two years' annual compensation, which shall
be payable in a lump sum, discounted based on the prime rate of Chase Bank then
in effect, which lump sum shall be payable within 30 days of the date of
termination; (ii) continue to provide to Employee the retirement benefits, life
insurance, medical insurance and disability insurance
3
pursuant to Section 3(d) through the end of the term hereof; and (iii) continue
to provide Employee's spouse and minor children with medical benefits pursuant
to Section 3(d) through the end of the term hereof.
7. NOTICES
-------
All notices hereunder shall be in writing and shall be delivered in
person or given by registered or certified mail, postage prepaid, and sent to
the parties at the respective addresses above set forth. Either party may
designate any other address to which notice shall be given, by giving notice to
the other of such change of address in the manner herein provided.
8. SEVERABILITY OF PROVISIONS
--------------------------
If any provision of this Agreement shall be declared by a court of
competent jurisdiction to be invalid, illegal or incapable of being enforced in
whole or in part, the remaining conditions and provisions or portions thereof
shall nevertheless remain in full force and effect and enforceable to the extent
they are valid, legal and enforceable, and no provision shall be deemed
dependent upon any other covenant or provision unless so expressed herein.
9. GOVERNING LAW
-------------
This Agreement shall be construed and governed by the laws of the
State of New York.
10. NON-WAIVER
----------
The failure of either party to insist upon the strict performance of
any term or condition in this Agreement shall not be considered a waiver or
relinquishment of future compliance therewith.
11. ENTIRE AGREEMENT; MODIFICATION
------------------------------
This Agreement contains the entire agreement between the parties
relating to the subject matter hereof. No modification of this Agreement shall
be valid unless it is made in writing and signed by the parties hereto.
12. NON-ASSIGNMENT; SUCCESSORS
--------------------------
4
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 Employer upon any sale of
all or substantially all of the Employer's assets, or upon any merger,
consolidation or reorganization of the Employer with or into any other
corporation, all as though such successors and assigns of the Employer and their
respective successors and assigns were the Employer; and (ii) this Agreement
shall insure to the benefit of and be binding upon the heirs, assigns or
designees of the Employee to the extent of any payments due to them hereunder.
As used in this Agreement, the term "Employer" shall be deemed to refer to any
such successor or assign of the Employer referred to in the preceding sentence.
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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
INTERLIANT, INC.,
Employer
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Xxxxx X. Xxxxxxxx
President
/s/ Xxxxxxx X. Xxxxxx
---------------------
Xxxxxxx X. Xxxxxx
5
