Exhibit 10.14
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT made as of this 1st day of
May, 1998, by and between DYNAMICWEB ENTERPRISES, INC. (the
"Company"), a New Jersey corporation having its principal office
at 271 Route 00 Xxxx, Xxxxxxxx X, Xxxxx 000, Xxxxxxxxx, Xxx
Xxxxxx 00000 and XXXXXXX XXXXX (the "Executive"), an individual
residing at 00 Xxxxxxx Xxxx Xxxxx, Xxxxxxxxxx, XX 00000.
BACKGROUND
The Company is engaged in the business of developing,
marketing, supporting Year 2000-compliant software products and
services that enable businesses to engage in electronic commerce
utilizing the Internet and traditional Electronic Data
Interchange (EDI) technologies and consulting services related to
the foregoing ("the Business"). The Executive has experience and
expertise in providing software and electronic commerce
consulting to various middle market and large businesses. In
connection with the foregoing, the Company has agreed to employ
the Executive, and the Executive has agreed to accept employment
by the Company, on the terms and conditions set forth in this
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of
the mutual covenants set forth herein, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Employment. The Company hereby employs the
Executive, and the Executive hereby accepts such employment, on
the terms and conditions set forth in this Agreement.
2. Duties of Employee. The Executive is engaged as
Executive Vice President of the Company and shall perform and
discharge well and faithfully such duties, including providing
consulting services to customers of the Company, supervision of
the Company's EDI consulting operations and such other duties as
may be assigned to the Executive from time to time by the Vice
President of Professional Services Group, the President or the
CEO. The Executive shall devote his full time, attention, and
energies to the business of the Company and shall not, during the
Employment Period (as defined in Section 3 of this Agreement), be
employed or involved in any other business activity, whether or
not such activity is pursued for gain, profit, or other pecuniary
advantage. This Section 2 shall not be construed as preventing
the Executive from investing the Executive's personal assets in
businesses which do not compete with the Company or any affiliate
of the Company, where the form or manner of such investments will
not require services on the part of the Executive in the
operation of the affairs of the business in which such
investments are made and in which the Executive's participation
is solely that of a private investor.
3. Term of Employment. The Executive's employment
under this Agreement shall be for a period (the "Employment
Period") commencing on and be effective as of May 1, 1998
("Effective Date") and ending on March 31, 1999; provided,
however, that this Agreement shall be automatically renewed on
April 1, 1999 and on April 1 of each subsequent year (the "Annual
Renewal Date") for one (1) additional year so that the Agreement
shall continue for a period ending one (1) year from each Annual
Renewal Date unless either party shall give written notice of
nonrenewal to the other party at least thirty (30) days prior to
an Annual Renewal Date in which event this Agreement shall
continue in effect for a term ending on the Annual Renewal Date
immediately following such notice. Notwithstanding the
foregoing, the Executive's employment may be terminated in
accordance with one of the following provisions:
(a) The Executive's employment may be terminated
by the Company at any time during the Employment Period for Cause
(as hereinafter defined) upon giving notice of such termination
at least ten (10) days prior to the date upon which such
termination shall take effect. If the Executive's employment is
terminated by the Company for Cause under the provisions of this
Section 3(a), all rights of the Executive under this Agreement
shall cease as of the effective date of such termination. As
used in this Agreement, "Cause" shall mean any of the following:
(i) the Executive's conviction of or plea of
guilty or nolo contendere to a felony, a crime involving
fraud, embezzlement, falsehood, or moral turpitude, or the
actual incarceration of the Executive for a period of thirty
(30) days;
(ii) the Executive's material failure to
follow the good faith instructions of the Vice President of
Professional Services Group, the President or the CEO, with
respect to the Company or its operations, following notice
of such good faith instructions;
(iii) the Executive's willful failure to
substantially perform the Executive's duties to the Company,
other than a failure resulting from the Executive's
incapacity because of physical or mental illness, which
willful failure results in demonstrable injury to the
Company;
(iv) any act of discrimination or harassment
in connection with another employee of the Company or an
employee or representative of a vendor, customer, or any
business or entity doing business with or
considering doing business with the Company; or
(v) breach by the Executive of the
provisions of Section 6, Section 7 or Section 8 of this
Agreement.
(b) The Executive's employment may be terminated
by the Executive by retirement or voluntary termination at any
time during the Employment Period. If the Executive retires or
voluntarily terminates his employment prior to the end of the
Employment Period, or the Executive dies, the Executive's
employment shall be deemed to cease as of the date of the
Executive's retirement, voluntary termination, or death, as the
case may be. If the Executive's employment terminates under the
provisions of this Section 3(b), all rights of the Executive
under this Agreement shall cease as of the date of such
retirement, voluntary termination, or death and any benefits
payable to the Executive shall be determined in accordance with
the Company's retirement and insurance programs then in effect.
(c) If the Executive is incapacitated by
accident, sickness, or otherwise so as to render the Executive
mentally or physically incapable of performing the services
required of the Executive under this Agreement for an aggregate
of one hundred twenty (120) days during any period of twelve (12)
months, upon the expiration of either of such periods or at any
time thereafter, the Executive's employment may be terminated for
disability ("Disability") immediately upon giving the Executive
notice to that effect. If the Executive's employment is
terminated for Disability under the provisions of this Section
3(c), all rights of the Executive under this Agreement shall
cease as of the last business day of the week in which such
termination occurs and any benefits payable to the Executive
shall be determined in accordance with the Company's insurance
programs then in effect.
4. Employment Period Compensation and Other Benefits.
(a) Base Salary. For services rendered by the
Executive under this Agreement, the Company shall pay the
Executive a base salary during the Employment Period at the rate
of One Hundred Forty Thousand Dollars ($140,000) per year,
payable in the same manner as salaries of other executive
officers of the Company.
(b) Benefit Plans. During the Employment Term,
Executive shall be entitled to participate in such employee
benefit plans or programs, including medical, dental, life,
accident and disability insurance, pension, incentive
compensation and other benefit plans as the Company may have in
effect, from time to time, upon terms and in accordance with
policies and procedures of the Company then in effect and
applicable to similarly situated executive officers and other key
management employees of the Company, provided, however,
that the Company reserves the right to adopt, amend or
discontinue any such plans at any time.
(c) Vacation. During the Employment Term,
Executive shall receive three weeks (15 working days) of vacation
in each calendar year, to be taken and determined in accordance
with vacation policies and procedures applicable to similarly
situated executive officers and other key management employees of
the Company. Executive also shall be entitled to all paid
holidays to which similarly situated executives and key
management employees of the Company are entitled.
(d) Expense Reimbursement. The Company shall pay
or reimburse Executive for all reasonable and necessary business,
travel and entertainment expenses incurred by Executive, within
the Company's established budget, during the Employment Term in
connection with the performance of Executive's duties and
responsibilities hereunder, upon submission of appropriate
invoices, receipts and other documentation, all in accordance
with the standard policies and procedures of the Company
applicable to similarly situated executive officers and other key
management employees of the Company. Notwithstanding the
foregoing, prior approval of the Company shall be required for
any expenditure in excess of $500.
(e) Automobile Expense. The Company shall
provide the Executive with a monthly allowance of $500 per month
to be used for costs and expenses related to the use and
operation of a motor vehicle for the conduct of business on
behalf of the Company, including without limitation, the cost of
the vehicle or vehicle lease, maintenance and repair of the
vehicle and insurance. Executive shall be responsible for
maintaining such records as may be required by the Internal
Revenue Service and other taxing authorities to provide support
for the business purpose of the vehicle. Executive shall
indemnify the Company for any claims by the Internal Revenue
Service or other taxing authority in connection with the payment
of the motor vehicle expense or the payment of taxes, if any,
thereon.
5. Bonus Payments. Executive shall be entitled to
bonus compensation, in addition to his Base Salary, as follows:
Calculation of Bonus
Bonus Period Compensation
4/1/98 to 12/31/98 25% of consulting revenue generated by
and through the efforts of Executive and
former employees of Design Crafting,
Inc. received by the Company in excess
of $110,000 each quarter prorated where
necessary.
1/1/99 and thereafter Commissions on all revenues received by
the Company from all electronic commerce
consulting services as agreed
6. Nonsolicitation of Customers and Employees.
(a) The Executive hereby acknowledges and
recognizes the highly competitive nature of the Business of the
Company and accordingly agrees that, during the Employment Period
and for a period of one year following the date of termination of
the Executive's employment under this Agreement ("the Termination
Date"), unless otherwise agreed to in writing by the Company, the
Executive shall not either directly or indirectly, in any manner
or capacity, whether as principal, agent, partner, officer,
director, employee, joint venturer, salesman, or corporate
Shareholder or otherwise for the benefit of any Person (as
defined below), (i) render services to, or solicit the rendering
of services to any Person in competition with the business of the
Company, which then is, or at any time during a period of one
year prior to the Termination Date was a Customer (as defined
below) of the Company, or (ii) engage in such conduct of any kind
whatsoever with any Person, which is then or has been at any time
during a period of one year prior to the Termination Date a
Customer, employee, salesperson, agent or representative of the
Company in any manner which interferes or might interfere with
the relationship of the Company with such Person, in an effort to
obtain such Person as a Customer, supplier, employee,
salesperson, agent or representative of any Business in
competition with the Company, or (iii) hire or participate in the
hiring by any Person of any employee of the Company.
"Person" means any individual, trust, partnership,
corporation, limited liability company, association, or other
legal entity.
"Customer" means any Person with which the Company
is currently engaged to provide consulting or other electronic
commerce services ("Services"), has been engaged to provide
Services within twelve (12) months prior to the date of
termination of the Executive's employment under this Agreement,
actively marketed, discussed a project with, negotiated with,
provided a bid to or otherwise communicated with in an effort to
obtain an engagement to provide Services or products sold by the
Company.
(b) It is expressly understood and agreed that
although the Executive and the Company consider the restrictions
contained in Section 6(a) of this Agreement reasonable for the
purpose of preserving for the Company its good will and other
proprietary rights, if a final judicial determination is made by
a court having jurisdiction that the time or territory or any
other restriction contained in Section 6(a) of this Agreement is
an unreasonable or otherwise unenforceable restriction against
the Executive, the provisions of Section 6(a) of this Agreement
shall not be rendered void but shall be deemed amended
to apply as to such maximum time and territory and to such other
extent as such court may judicially determine or indicate to be
reasonable.
7. Disclosure of Confidential Information. The
Executive acknowledges that the Company's trade secrets, as they
may exist from time to time, and confidential information
concerning its software, software architecture, products,
programs, technical information, procurement and sales activities
and procedures, identity of customers and potential customers,
business plans, business and commercial contracts and agreements,
promotion and pricing techniques, employment related techniques
and agreements and credit and financial data concerning customers
are valuable, special and unique assets of the Company. In light
of the highly competitive nature of the industry in which the
Company's business is conducted, the Executive further agrees
that all knowledge and information described in the preceding
sentence not in the public domain and heretofore or in the future
obtained by the Executive shall be considered confidential
information. In recognition of this fact, Executive agrees that
he will not disclose any of such secrets, processes or
information to any person or other entity for any reason or
purpose whatsoever, except as necessary in the performance of his
duties as an employee of the Company and then only upon a written
confidentiality agreement in such form and content as requested
by the Company from time to time, nor shall the Executive make
use of any such secrets, processes or information (other than
information in the public domain) for his own purposes or for the
benefit of any person or other entity (except the Company and its
subsidiaries) under any circumstances. The provisions contained
in this Section 7 shall also apply to information obtained by the
Executive with respect to any subsidiary of or company affiliated
with the Company.
8. Business Information. Upon the termination of his
employment with the Company, Executive (or, as appropriate, his
personal representatives) shall deliver to the Company (without
retaining copies of the same), all plans, designs, customer
lists, correspondence, records, documents, accounts and papers of
any description and any other property of the Company within the
possession or under the control of Executive (or, as appropriate,
his personal representatives) and relating to the affairs and
business of the Company, whether drafted, created or compiled by
Executive or received by Executive from other individuals or
entities (whether employees of or affiliated with the Company).
9. Remedies. The Executive acknowledges and agrees
that the Company's remedy at law for a breach or threatened
breach of any of the provisions of Section 6, Section 7 or
Section 8 of this Agreement would be inadequate and, in
recognition of this fact, in the event of a breach or threatened
breach by the Executive of any of the provisions of Section 6,
Section 7 or Section 8 of this Agreement, it is agreed that, in
addition to any remedy at law, the Company shall be
entitled to without posting any bond, and the Executive agrees
not to oppose the Company's request for, equitable relief in the
form of specific performance, temporary restraining order,
temporary or permanent injunction, or any other equitable remedy
which may then be available. Nothing herein contained shall be
construed as prohibiting the Company from pursuing any other
remedies available to it for such breach or threatened breach.
If a court of law having jurisdiction grants any equitable remedy
to the Company seeking to enforce the provisions of this
Agreement, the Executive shall reimburse the Company for all
reasonable attorneys' fees and costs incurred in seeking to
enforce this Agreement.
10. Notices. Any notice required or permitted under
this Agreement shall be sufficient if it is in writing and shall
be deemed given at the time sent certified mail, with return
receipt requested, addressed as follows:
If to the Executive:
Xxxxxxx Xxxxx
00 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
With a copy to:
Xxxx X. Xxxx, Esquire
Rich and Xxxxxxxx
0 Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
If to the Company:
DynamicWeb Enterprises, Inc.
000 Xxxxx 00 Xxxx, Xxxx. X
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx, President
With a copy to:
Xxxxxxx X. Xxxxxx, Esquire
Xxxxxxx & Xxx
One Glenhardie Corporate Center
0000 Xxxxxxxx Xxxx
X.X. Xxx 000
Xxxxx, XX 00000-0000
Changes in the addresses may be effected at any time and from
time to time by notice similarly given.
11. No Waiver. Failure by either party to this
Agreement at any time or times hereafter to require strict
performance by the other party of any of the provisions, terms,
or conditions contained in this Agreement shall not waive,
affect, or diminish any right of the first party at any
time or times hereafter to demand strict performance therewith,
and with respect to any other provisions, terms, or conditions
contained in this Agreement. Any waiver of such provision, term,
or condition shall not waive or affect any other failure to
perform a provision, term, or condition of this Agreement,
whether prior or subsequent thereto, and whether of the same or a
different type. None of the provisions, terms, or conditions of
this Agreement shall be deemed to have been waived by any act or
knowledge of a party hereto except by an instrument in writing
signed by that party and directed to the other specifying such
waiver.
12. Severability. The invalidity or unenforceability
of any provision of this Agreement shall in no event affect the
validity or enforceability of any other provision. With respect
to the provisions of Section 6 of this Agreement, in the event
any court of competent jurisdiction determines that such
provisions are unreasonable or contrary to law with respect to
their time or geographic restriction, or both, the parties hereto
authorize such court to substitute such restrictions as it deems
appropriate without invalidating such paragraph and/or this
Agreement.
13. Binding Effect and Benefit. The provisions of
this Agreement shall be binding upon, and shall inure to the
benefit of, the successors and assigns of the Company, and the
heirs, representatives, executors, devisees, and legatees of the
Executive.
14. No Assignment. This Agreement shall not be
assignable by either party hereto, except by the Company to any
successor to its business that is financially capable of assuming
the obligations of the Company hereunder.
15. Captions. The captions of the several paragraphs
and subparagraphs of this Agreement are inserted for convenience
or reference only. They constitute no part of this Agreement and
are not to be considered in the construction hereof.
16. Counterparts. This Agreement may be executed in
any number of counterparts, each of which will be deemed one and
the same instrument which may be sufficiently evidenced by any
one counterpart.
17. Jurisdiction and Service of Process. Any action
or proceeding seeking to enforce any term or provision of this
Agreement may be instituted against a party only in the courts of
the State of New Jersey situated in the County of Essex, or, if a
party can not acquire jurisdiction, in the United States District
Court for the District of New Jersey sitting at Newark, and the
parties irrevocably consent and submit to the exclusive
jurisdiction of such courts (and of the appropriate appellate
courts) in any such action or proceeding and waive any objection
which they may now have or hereafter have to the laying
of the venue of any such action or proceeding in such courts.
Service of process, and any other notice or communication, in any
such action or proceeding shall be effective against or as to a
party if given by first class certified mail or registered mail,
return receipt requested, or by any other means of mail which
requires a signed receipt, postage prepaid, mailed to such party
at the address to which such party is to be sent notices in
accordance with the Notice provisions of this Agreement set forth
in Section 10, above and the parties irrevocably consent to such
service of process, giving of notices and transmission of
communications. This Section shall not diminish or otherwise
affect the right of a party to serve process in any manner
permitted by applicable law.
18. Applicable Law. The provisions of this Agreement
are to be construed, administered, and enforced in accordance
with the domestic, internal law of the State of New Jersey,
without regard to its conflicts of laws principles.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.
DYNAMICWEB ENTERPRISES, INC.
ATTEST:
___________________________ By \s\ Xxxxxx X. Xxxxxxxxxx, Xx.
Secretary Xxxxx Xxxxxxxxxx, Xx.
CEO
WITNESS:
\s\ Xxxx Xxxxxxxxx \s\ Xxxxxxx Xxxxx (SEAL)
Xxxxxxx Xxxxx
