Exhibit 10.11
AGREEMENT
This is an agreement (this "Agreement") dated as of October 24, 1997, between
Xxxxx X. Xxxxx ("Buren") and Strategia Corporation ("Strategia").
RECITALS
A. Buren is an Employee, Executive Vice President, Member of
the Board of Directors, and Founder of Strategia. Buren has
provided years of loyal service to Strategia since its
inception.
B. Buren is the record holder of 92,799 shares (the "Shares")
of Strategia Common Stock ("Strategia Stock"), options to
purchase 90,000 shares of Strategia Stock (the "Options"),
and warrants to purchase 3,710 shares of Strategia Stock
(the "Warrants"). The Shares and the stock issuable upon
the exercise of the Options and Warrants are referred to in
this Agreement as the ("Aggregate Shares").
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C. Buren wishes to retire from his employment with Strategia,
but wishes to continue his involvement with Strategia
through a consulting arrangement.
D. Strategia wishes to permit Buren to retire while retaining
regular services from him through a consulting arrangement.
E. Strategia and Buren wish to enter into this Agreement to
provide the terms and conditions of the foregoing.
In consideration of the terms and conditions and covenants set forth herein,
Buren and Strategia agree as follows:
1. RETIREMENT. Buren hereby retires from all of his positions with
Strategia and all of its subsidiaries and affiliates, including his positions as
an employee, officer, and director (but not including his position as a member
of the Board of Directors of Strategia). This retirement is effective
immediately. Buren shall promptly sell to Strategia all of his stock in Twinsys
Dataguard, S.A. ("Twinsys") for an amount in cash equal to the stockholders'
equity of Twinsys as of September 30, 1997, divided by the number of shares of
Twinsys outstanding as of that date.
2. EFFECT OF RETIREMENT ON OPTIONS. For all purposes under the
Options and the Plan pursuant to which the Options were granted, Buren shall be
deemed to retire as of the date of this Agreement.
3. CONSULTING SERVICES. From the date of this Agreement, through
March 31, 2000, Buren shall provide such consulting services as Strategia may
request from time to time on the following terms and conditions:
a. MINIMUM AVAILABILITY. Buren shall make himself available to
provide services hereunder a minimum of (the "Minimum Availability") (i) 3
days per week from October 1, 1997, to December 31, 1998, and (ii) 2 days per
week from January 1, 1999, to March 31, 2000. The services to be provided
hereunder may require overseas travel from time to time. In connection with
overseas travel, the Minimum Availability shall be 5 days per week, but any
number of days in excess of the otherwise applicable Minimum Availability
shall be subtracted from to reduce the Minimum Availability for the week(s)
immediately after his return to the United States.
b. COMPENSATION. Strategia shall pay Buren $300 ($350 for time
after December 31, 1998) per half day of services. Strategia shall compensate
Buren for a half day if he provides up to 4 hours of services in a day and
for a full day if he provides more than 4 hours of services in a day.
Strategia shall compensate Buren for no less than the Minimum Availability
minus one day (the "Minimum Compensation") for each week through March 31,
2000 so long as Buren has made himself available to provide services for that
week for the Minimum Availability. At the end of each two week period, Buren
will submit to Strategia an invoice detailing the work performed and the
basis for determining the amount owed to him under this Agreement. Strategia
shall pay such invoice within five business days of its receipt.
c. SCHEDULING. It is anticipated that a great deal of the
services hereunder will be performed independently by Buren on his own
schedule. However, some of the services will involve scheduled meetings with
Strategia representatives, customers, and others. Buren shall be obligated to
provide services on any particular day only if Strategia has given him at
least one week notice of its requirement that he work that day. If Buren
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requests and Strategia consents, Buren may spread one day's worth of services
over more than a day, but for purposes of Minimum Availability and
Compensation, Buren will be treated as if the services were all performed on
a single day.
d. PROJECT SPECIFICATION. At the outset of any project to be
performed by Buren hereunder, Buren may request that specifications for the
project be provided in writing. Strategia may request that Buren prepare such
specifications as part of the services to be provided hereunder. Strategia
shall have the final authority to approve or revise all such specifications.
e. EXPENSES. Strategia shall reimburse Buren for all travel
and similar expenses Buren reasonably incurs in connection with the provision
of services hereunder in accordance with its expense reimbursement policies
in effect from time to time. Unless Strategia gives Buren notice to the
contrary, Buren shall not be required to obtain Strategia's approval prior to
incurring expenses to be reimbursed.
f. INDEPENDENT CONTRACTOR. Buren's relationship with
Strategia hereunder shall be that of an independent contractor and not that
of an officer or employee. Buren shall have no right to act as an agent of,
or otherwise obligate, Strategia. Buren understands that he will not be
entitled to any benefits to which Strategia's employees are entitled, nor
will Strategia withhold taxes or pay social security or other payroll taxes
with respect to Buren's compensation hereunder (unless Strategia is required
to do so under applicable law). To the extent that Strategia may do so
without incurring additional cost, Strategia shall permit Buren to continue
his coverage under Strategia's health and disability insurance. Buren shall
reimburse Strategia for the cost of continuing such coverage.
g. NONCOMPETE. During the term of this engagement, and for
the one year period thereafter (the "Noncompete Period"), Buren shall not
directly or indirectly, as an employee, independent contractor, agent,
partner, shareholder, owner, or in any other capacity, engage in any
activities that are in competition with those activities that Strategia (i)
engages in as of the date of this Agreement or (ii) engages in from time to
time after the date of this Agreement to the extent that Buren provides
consulting services under this Agreement with respect to such activities.
Notwithstanding the forgoing, Buren may (i) engage in activities related to
training individuals to use personal computers and software products that
utilize them, (ii) engage individually (or in conjunction with no more than
one full time equivalent) in providing system integration (including
programming, but not Year 2000 or disaster recovery) consulting so long as he
provides those services solely and directly to the end user of the services
and not as a subcontractor or to or in conjunction with other providers of
such services. During the Noncompete Period, Buren shall not directly or
indirectly offer employment (or an independent contractor position or similar
engagement) to any employee or independent contractor of Strategia or any of
its subsidiaries or affiliates (a "Strategia Employee"), or otherwise
encourage or entice any Strategia Employee to leave Strategia. The geographic
scope of this covenant not to compete shall include the United Sates, Canada,
and Europe. Buren acknowledges that the scope of this covenant is reasonable
in that it protects the vital interests of Strategia, while at the same time
permits Buren the opportunity to earn a living in the many areas of his
expertise that are not covered by this covenant.
4. TRADE SECRETS. Buren has been given access to, and, pursuant to
his obligations under this Agreement, will continue to be given access to
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proprietary information of Strategia. Buren shall keep all such proprietary
information confidential and shall not use such information for any purpose
other than pursuant to the terms of this Agreement. For the purpose of this
Agreement, proprietary information shall include all information of Strategia
and its subsidiaries, affiliates, and customers that is not publicly known and
shall include, without limitation, customer and contact lists, know how and
methodologies, technical information, and policies. Proprietary information
shall also include such information developed by Buren either prior to the date
of this Agreement or pursuant to the terms of this Agreement.
5. LIMITATION ON EXERCISING OPTIONS. Buren was granted an Option
in October 1996 for 64,631 shares (the "October Option"). Because it was
anticipated that Buren would remain an officer and employee of Strategia for
an indefinite period of time, there is no provision in the October Option
causing it to vest over a period of time. The October Option does provide
for the option to lapse on voluntary termination of employment other than
retirement. Under Strategia's policies, Buren does not have the right at his
current age to retire. To accommodate Buren's desire to terminate his
employment and retain his Options and while trying to ensure that Buren will
provide the services required under this Agreement, the October Option is
modified as follows:
(i) The October Option may only be exercised for the
following number of shares on or after the following dates:
------------------------------------------------------------------
On or After Number of Shares Cumulative Total
------------------------------------------------------------------
April 1, 1998 8,079 8,079
July 1, 1998 8,079 16,158
October 1, 1998 8,079 24,237
January 1, 1999 8,079 32,316
April 1, 1999 8,079 40,395
July 1, 1999 8,079 48,474
October 1, 1999 8,079 56,553
January 1, 2000 8,078 64,631
------------------------------------------------------------------
(ii) Notwithstanding the foregoing, (A) the October Option shall
be fully exercisable upon a Change in Control or upon
Buren's death or permanent disability and (B) Buren's right
to exercise the other Options shall not be restricted by
this Agreement. Change in Control shall have the same
meaning in this Agreement as it has in the Plan (as in
effect on the date of this Agreement) pursuant to which the
Options were granted.
(iii) If Buren shall breach this Agreement (A) by failing to provide
services when and as required and in a professional and competent
manner or by violating the noncompete covenant, and such breach
is not cured within 15 days after Strategia has given Buren
written notice specifying in detail the particulars of the breach
or (B) by repeatedly materially violating the noncompete covenant
or failing to provide services when and as required and in a
professional and competent manner, then those shares of the
October
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Option which are not then exercisable shall never become
exercisable. If Buren shall dispute Strategia's determination
regarding the above, the matter shall be submitted to binding
arbitration at which the burden of proof shall be on Strategia.
6. LIMITATION ON SELLING SHARES. Buren shall not sell any of the
Aggregate Shares (nor shall he sell any Strategia shares short) except as
follows:
(i) If Strategia engages in an underwritten public offering of its common
stock that is consummated prior to March 31, 1998 (a "Qualified
Offering"), Buren will be permitted to sell up to 30,000 of his
Aggregate Shares in the Qualified Offering; provided, that Buren shall
(A) be obligated to comply with all applicable securities laws in
connection with the Qualified Offering, (B) be subject to all
limitations imposed by the underwriter in connection with the
inclusion of Buren's shares, (C) execute all documents required by the
underwriter in connection with including his shares, and (D) not be
permitted to include his shares to the extent that the underwriter
determines that to include them may have an adverse impact on the
Qualified Offering (if other persons with registration rights also
wish to participate in the Qualified Offering and the underwriter
excludes shares, the shares, if any, that will be included for Buren
and these other participants will be determined pro rata based on the
respective amount of shares each such participant would otherwise be
entitled to include in the underwriting). Promptly after the
consummation of a Qualified Offering in which any of Buren's shares
are sold, Buren will be paid the offering price of the shares, net of
his pro rata portion of commissions and expenses;
(ii) If Strategia does not engage in a Qualified Offering, or if
Buren is not permitted to sell all of his shares in a
Qualified Offering because of an underwriter's
determination (a "Cut Back"), Buren may sell 30,000 (or, in
the case of a Cut Back, the number of Buren's shares that
were Cut Back) of his Aggregate Shares after March 31,
1998; and
(iii) In addition to the foregoing, Buren may sell up to 5,000
(10,000 beginning in the third quarter of 1998) of his
Aggregate Shares per calendar quarter.
In connection with all sales of Aggregate Shares, Buren shall comply with all
applicable securities laws.
7. PAYMENT OF SALARY, ETC. Promptly after the execution of this
Agreement, Strategia shall pay Buren $12,446.18 (minus any applicable
withholding) for all accrued but unpaid salary, bonus and unused vacation
time (this amount also includes an additional $100 for the release set forth
in Section 9 (iv) of this Agreement). Strategia shall also reimburse Buren
under its medical reimbursement plan up to $416.67 (minus any reimbursements
already taken by Buren with respect to 1997 under the plan) for expenses that
qualify under the plan and were incurred on or prior to the date of this
Agreement. Such reimbursement shall be subject to the terms and conditions of
the plan.
8. SERVICE ON BOARD OF DIRECTORS. Buren agrees that so long as he is
renominated and reelected each year, he will continue to serve on the
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Board of Directors of Strategia; provided, that Buren shall immediately
resign from the Board of Directors of Strategia (and shall thereafter not
seek reelection) upon the adoption of a resolution requesting that he do so
approved by a majority of the other members of the Board of Directors then in
office. For the period through March 31, 2000, Buren shall be compensated for
his service on the Board of Directors pursuant to the terms of Section 3(b)
of this Agreement. Buren hereby waives his right to receive any and all other
compensation (including cash, stock, options, and other forms of
compensation) to which he would otherwise be entitled for his service as a
member of the Board of Directors during this period.
9. RELEASE. Buren agrees as follows (for the purposes of this Section
9, the term Strategia shall include Strategia and its subsidiaries and
affiliates):
(i) Buren agrees not to file, pursue or prosecute any suit, action,
charge or claim, of any nature whatsoever, against Strategia, including any
suit, action, charge or claim arising out of Buren's employment with Strategia
or his separation from employment with Strategia, and further hereby assigns to
Strategia, without reservation, individually and collectively, for and on behalf
of himself, his estate, agents, attorneys, successors, heirs, executors,
administrators and assigns, all suits, actions, charges or claims, of any nature
whatsoever, accrued or unaccrued, against any party whatsoever, arising out of
his employment with Strategia or his separation from employment with Strategia.
(ii) In addition, Buren hereby, individually and collectively, for
himself, his estate, agents, attorneys, successors, heirs, executors,
administrators and assigns, irrevocably and unconditionally releases and
discharges, Strategia and its agents, directors, shareholders, parent and
subsidiary corporations, officers, employees, representatives, attorneys,
predecessors and successors (hereinafter, collectively referred to as "the
Releasees") from any and all actions, causes of action, suits, debts,
charges, complaints, claims, liabilities, obligations, promises, agreements,
controversies, damages and expenses (including attorneys' fees and costs
actually incurred) of any nature whatsoever, in law or equity, whether known
or unknown, which he ever had, now has or may have had against Releasees
since the beginning of time to the date of execution of this Agreement. This
release and discharge includes, but is not limited to, any and all claims
arising under Federal, State or local statutes, ordinances, resolutions,
regulations or constitutional provisions prohibiting discrimination in
employment on the basis of sex, race, religion, national origin, age,
disability and/or veterans' status, including but not limited to claims
arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sections
1981, 1981a, 1983 and 1985, KRS Chapter 344, the Americans With Disabilities
Act, the Age Discrimination in Employment Act, the Federal Rehabilitation Act
of 1973, the Older Workers' Benefits Protection Act, Executive Order 11246,
each as amended, and all other similar such statutes. This release and
discharge also includes, but is not limited to, any and all tort or contract
claims. Buren further hereby agrees that if any such released and/or
discharged claim referenced herein is filed, pursued or otherwise prosecuted
by him, individually or collectively, or by persons or entities acting by or
through him, individually or collectively, Buren waives his right to relief
from such claim, including the right to attorneys' fees, costs and any other
relief, whether legal or equitable, sought in such claim.
(iii) Buren further agrees that he will not seek hiring, employment,
rehiring, or reemployment with Strategia.
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(iv) Buren further agrees and acknowledges that the payment provided to
him from Strategia pursuant to Section 7 of this Agreement includes a
specific payment of ONE HUNDRED DOLLARS, in exchange for the waiver of his
rights, if any, to assert or allege discrimination on the basis of age
pursuant to the Age Discrimination in Employment Act, as amended, and/or KRS
Chapter 344, as amended, (collectively, "Age Claim Waiver"), and that this
ONE HUNDRED DOLLARS designated by Buren constitutes separate and adequate
consideration to which he is not otherwise entitled in exchange for his Age
Claim Waiver. Buren further agrees that he has been instructed by Strategia
that he may and should consult the attorney of his choice regarding the terms
of this Agreement, specifically including the Age Claim Waiver, and that he
shall have up to twenty-one (21) days to consider the terms of this Agreement
and the Age Claim Waiver, and whether to sign this Agreement, regardless of
whether he chooses to execute this Agreement prior to the expiration of the
twenty-one (21) day period provided. Buren further agrees that he has been
instructed by Strategia that, following his execution of this Agreement, he
shall have up to seven (7) days in which to withdraw or rescind his Age Claim
Waiver, and only his Age Claim Waiver, but if he exercises his right to
withdraw or rescind his Age Claim Waiver, Buren shall be deemed to have left
the employ of Strategia by resignation and not retirement and Strategia's
duty to pay him the Minimum Compensation stated in Paragraph 2(b) above shall
become immediately void and Buren shall thereafter remain bound by the
remaining provisions of this Agreement.
(v) Buren agrees that the fact and the terms of this Agreement shall be
strictly confidential and that he shall not divulge, directly or indirectly,
explicitly or implicitly, the fact or terms of this Agreement to any person
other than his spouse, attorney(s) and tax advisor(s) or as otherwise
required by law or to assure compliance with the terms of this Agreement, and
in the event of disclosure to these persons, will inform such persons of the
terms of this Paragraph 9(v) and take all necessary actions to obtain such
persons agreement to comply with the terms of this paragraph so as to protect
and ensure the confidentiality of this Agreement. Buren further agrees that
for the purposes of this paragraph, his spouse, attorney(s) and tax
advisor(s) are his agents and that a breach of these terms of confidentiality
by them, or any of them, constitute a breach by Buren.
10. The Parties represent and certify that they have carefully read and
fully understand all of the provisions of the Agreement, that they have had
ample and adequate opportunity to thoroughly discuss all aspects of this
Agreement with legal counsel of their own choosing, that they are voluntarily
entering into this Agreement and that no representations have been made other
than those set forth explicitly herein.
11. The Parties understand and agree that this Agreement shall in all
respects be interpreted, enforced and governed under the laws of the
Commonwealth of Kentucky and that the language of this Agreement shall in all
cases be interpreted as a whole, according to its fair meaning and not
strictly for or against either of the Parties, regardless of which is the
drafter of this Agreement.
12. The Parties further acknowledge and agree that this Agreement is
executed in settlement of disputed claims and that neither it, nor the fact
of settlement, constitutes an admission of or is to be used as evidence of
any liability, violation or wrongdoing of any kind or nature whatsoever on
the part of the Parties or either of them.
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13. The Parties agree that in any event a provision of this Agreement
or any application thereof shall be judged by any court of competent
jurisdiction to be invalid, illegal or unenforceable in any respect, unless
such provision or application thereof is of the essence of this Agreement,
the validity, legality or enforceability of all other applications of that
provision, and of all other provisions and applications of this Agreement,
shall not in any way be affected and that such invalid, illegal or
unenforceable provision or application shall be deemed not to be a part of
this Agreement, and that this Agreement shall then be enforced to the maximum
extent allowed by the applicable law.
14. The Parties agree that this Agreement sets forth the entire
agreement between the Parties hereto relating to the subject matter hereof
and fully supersedes any and all prior agreements or understandings between
them. This Agreement may be amended or superseded only by a subsequent
writing, executed by the party against whom enforcement is sought.
15. This Agreement shall not be assignable by Buren, but shall be
binding on Buren and his estates, agents, attorneys, successors, heirs,
executors, administrators, insurers and assigns, and shall inure to the
benefit of Strategia, and its subsidiary companies, agents, directors,
shareholders, parent and sister corporations, affiliates, officers,
employees, representatives, attorneys, insurers, predecessors and successors.
IN WITNESS WHEREOF, and intending to be legally bound thereby,
Buren and Strategia have executed the foregoing Agreement on the dates
indicated.
I UNDERSTAND AND AGREE THAT THIS AGREEMENT
CONSTITUTES A FULL AND FINAL RELEASE OF CLAIMS.
/s/Xxxxx X. Xxxxx
Buren
Date: 10/23/97
COMMONWEALTH OF KENTUCKY )
) SS:
COUNTY OF JEFFERSON )
Subscribed and sworn to before me this 23rd day of October, 1997.
Notary Public /s/ Xxxxxxx X. Xxxxx
Commission expires: July 3, 2001
STRATEGIA
By: /s/ Xxxxxxx X. Xxxxx
Title: President
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Date: 10/23/97
COMMONWEALTH OF KENTUCKY )
) SS:
COUNTY OF JEFFERSON )
Subscribed and sworn to before me by Xxxxxxx X. Xxxxx, President, on
behalf of Strategia this 23rd day of October, 1997.
Notary Public /s/Xxxxxxx X. Xxxxx
Commission expires: July 3, 2001
