EXHIBIT (d)(5)(A)
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is entered into as of this
11th day of May, 2001, by and among Dimension Data Holdings plc, a company
incorporated in England and Wales ("Parent"), Proxicom, Inc., a Delaware
corporation (the "Company") and Xxxx X. Xxxxxxxxx (the "Executive").
WHEREAS, the Executive is an employee of the Company;
WHEREAS, the Company, Parent and Putter Acquisition Corp., an indirect
wholly owned subsidiary of Parent ("Merger Subsidiary"), have entered into an
Agreement and Plan of Merger, dated May 11, 2001 (the "Merger Agreement"),
pursuant to which the Company will survive as a wholly owned subsidiary of
Parent (the "Merger");
WHEREAS, as an inducement to Parent and Merger Subsidiary entering
into the transactions contemplated in the Merger Agreement, Parent has required
that the Executive enter into an employment agreement with the Company and
Parent which includes the restrictive covenants set forth in Sections 7 and 10
hereof, in substitution of any agreement relating to the subject matter hereof,
effective at the "Effective Time" (as such term is defined in the Merger
Agreement).
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and other good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged, the parties hereto
agree as follows:
1. Employment Agreement. On the terms and conditions set forth in
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this Agreement, the Company agrees to employ the Executive and the Executive
agrees to be employed by the Company for the Employment Period set forth in
Section 2 hereof and in the position and with the duties set forth in Section 3
hereof. Terms used herein with initial capitalization are defined in Section 21
below.
2. Term. The initial term of employment under this Agreement shall
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be for a term (the "Initial Term") commencing at the Effective Time as defined
in the Merger Agreement and ending on the later of (i) September 30, 2003 and
(ii) the second anniversary of the Effective Time (the "Expiration Date"). In
the event the transactions contemplated in the Merger Agreement are not
consummated, this Agreement shall have no effect and shall be null and void.
Unless either party terminates the Executive's employment by way of written
notice in accordance with Section 11 given to the other party at least 30 days
prior to the Expiration Date, the term of employment thereafter shall be
extended indefinitely, unless and until either party provides 30 days written
notice to the other party in accordance with Section 11 that such indefinite
term shall end at the end of such 30 day notice period. The parties' obligations
under Sections 7, 9, 10 and 11 hereof shall survive the expiration or
termination of the Employment Period.
3. Position and Duties. The Executive shall serve as Chief Executive
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Officer of the Company during the Employment Period. As Chief Executive Officer
of the Company, the Executive shall render executive, policy and other
management services to the Company of the type customarily performed by persons
serving in a similar capacity. Unless instructed otherwise by the Board in its
discretion, the Executive shall report directly to the Executive Director of the
Board. The Executive shall perform such duties as the Board may from time to
time reasonably determine and assign to the Executive provided that such duties
do not constitute a material departure from the services and responsibilities
routinely provided by the Executive. The Executive shall devote the Executive's
reasonable best efforts and substantially full business time to the performance
of the Executive's duties and the advancement of the business and affairs of the
Company during the Employment Period.
4. Place of Performance. In connection with the Executive's
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employment by the Company during the Transition Employment Period, the
Executive's primary place of employment and work location shall be the
Executive's current place of employment and work location on the date of the
execution of this Agreement, except for reasonable travel on Company business
and as otherwise consented to by the Executive.
5. Compensation.
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(a) Base Salary. During the Employment Period, the Company shall pay
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to the Executive an annual base salary (the "Base Salary"), which initially
shall be at the rate of $325,000 per year. The Base Salary shall be reviewed no
less frequently than annually and may be increased (and not decreased, other
than in an across-the-board reduction in the base salaries of all or
substantially all of the employees of Parent's services business in the United
States) at the discretion of the Board. If the Executive's Base Salary is
increased, the increased amount shall be the Base Salary for the remainder of
the Employment Period. The Base Salary shall be payable monthly or in such other
installments as shall be consistent with the Company's payroll procedures in
effect from time to time.
(b) Bonus. During the Employment Period, the Executive shall be
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eligible to earn an annual performance bonus pursuant to a bonus plan adopted by
the Board for each fiscal year. The Executive's target bonus opportunity for
each year during the Initial Term shall be 50% of the Executive's annual Base
Salary (the "Target Bonus").
(c) Stock Option Grants. During the Employment Period, the Executive
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shall be eligible to participate in Parent's Share Option Scheme (the "Parent
Scheme") in accordance with the terms and conditions therein. As of the
Effective Time, the Executive shall be granted an initial stock option for
125,000 ordinary shares of Parent under the Parent Scheme (the "Initial
Options") (subject to accelerated vesting or cash-out as set forth in this
Agreement).
(d) Retention Bonus. The Executive shall be eligible to receive a cash
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retention bonus (the "Retention Bonus") payable to the Executive on the first
and second anniversaries of the Effective Time (each, a "Payment Date"),
provided the Executive remains employed with the Company through the applicable
Payment Date, as follows: $150,000 on the first anniversary of the Effective
Time and $100,000 on the second anniversary of the Effective Time. If the
Executive is terminated without "Cause" (as defined herein), or the Executive
terminates his employment for "Good Reason" (as defined herein) prior to a
Payment Date, then any unpaid portion of the Retention Bonus shall be paid to
the Executive, and such payment to the Executive will be accelerated to the date
of such termination. The form of payment of the Retention Bonus, at the
discretion of the Company, shall be either a cash lump sum payment on the
applicable Payment Date, or equal cash payments paid over a six consecutive
month period commencing on the
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applicable Payment Date (for purposes of clarity, the Executive need not
continue to be employed hereunder beyond such second anniversary date to receive
the Retention Bonus, regardless of the form of payment selected by the Company).
(e) Benefits. During the Employment Period, the Executive will be
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entitled to all employee benefits and perquisites made available to similarly
situated employees of the Company. Nothing contained in this Agreement shall
prevent the Company from changing carriers or from effecting modifications in
insurance coverage for the Executive.
(f) Vacation; Holidays. The Executive shall be entitled to all public
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holidays observed by the Company and vacation days in accordance with the
applicable vacation policies for senior executives of the Company, which shall
be taken at a reasonable time or times; provided that no more than 20 vacation
days shall be available during any calendar year.
(g) Withholding Taxes and Other Deductions. To the extent required by
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law, the Company shall withhold from any payments due to the Executive under
this Agreement any applicable federal, state or local taxes and such other
deductions as are prescribed by law or Company policy.
6. Expenses. The Executive is expected and is authorized, subject to
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the business expense policies as determined by the Board, to incur reasonable
expenses in the performance of his duties hereunder, including the costs of
entertainment, travel, and similar business expenses incurred in the performance
of his duties. The Company shall promptly reimburse the Executive for all such
expenses in accordance with Company policy.
7. Confidentiality; Work Product.
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(a) Information. The Executive acknowledges that the information,
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observations and data obtained by the Executive concerning the business and
affairs of the Company and its Affiliates and their predecessors during the
course of the Executive's performance of services for, or employment with, any
of the foregoing persons (whether or not compensated for such services) are the
property of the Company and its Affiliates, including information concerning
acquisition opportunities in or reasonably related to the business or industry
of the Company or its Affiliates of which the Executive becomes aware during
such period. Therefore, the Executive agrees that he will not at any time
(whether during or after the Employment Period) disclose to any unauthorized
person or, directly or indirectly, use for the Executive's own account, any of
such information, observations, data or any Work Product or Copyrightable Work
(as defined below) without the Board's consent, unless and to the extent that
the aforementioned matters become generally known to and available for use by
the public other than as a direct or indirect result of the Executive's acts or
omissions to act or the acts or omissions to act of other senior or junior
management employees of the Company and its Affiliates. The Executive agrees to
deliver to the Company at the termination of the Executive's employment, or at
any other time the Company may request in writing (whether during or after the
Employment Period), all memoranda, notes, plans, records, reports and other
documents, regardless of the format or media (and copies thereof), relating to
the business of the Company and its Affiliates and their predecessors
(including, without limitation, all acquisition prospects, lists and contact
information) which the Executive may then possess or have under the Executive's
control.
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(b) Intellectual Property. The Executive acknowledges that all
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inventions, innovations, improvements, developments, methods, designs, analyses,
drawings, reports, trade secrets, know-how, ideas, computer programs, and all
similar or related information (whether or not patentable) that relate to the
actual or anticipated business, research and development or existing or future
products or services of the Company or its Affiliates that are conceived,
developed, made or reduced to practice by the Executive while employed by the
Company or any of its predecessors ("Work Product") belong to the Company and
the Executive hereby assigns, and agrees to assign, all of the Executive's
rights, title and interest in and to the Work Product to the Company. Any
copyrightable work ("Copyrightable Work") prepared in whole or in part by the
Executive in the course of the Executive's work for any of the foregoing
entities shall be deemed a "work made for hire" under the copyright laws, and
the Company shall own all rights therein. To the extent that it is determined,
by any authority having jurisdiction, that any such Copyrightable Work is not a
"work made for hire," the Executive hereby assigns and agrees to assign to
Company all the Executive's rights, title and interest, including without
limitation, copyright in and to such Copyrightable Work. The Executive shall
promptly disclose such Work Product and Copyrightable Work to the Board and
perform all actions reasonably requested by the Board (whether during or after
the Employment Period) to establish and confirm the Company's ownership
(including, without limitation, assignments, consents, powers of attorney and
other instruments).
(c) Enforcement. The Executive acknowledges that the restrictions
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contained in Section 7(a) hereof are reasonable and necessary, in view of the
nature of the Company's business, in order to protect the legitimate interests
of the Company, and that any violation thereof would result in irreparable
injury to the Company. Therefore, the Executive agrees that in the event of a
breach or threatened breach by the Executive of the provisions of Section 7(a)
hereof, the Company shall be entitled to obtain from any court of competent
jurisdiction, preliminary or permanent injunctive relief restraining the
Executive from disclosing or using any such confidential information. Nothing
herein shall be construed as prohibiting the Company from pursuing any other
remedies available to it for such breach or threatened breach, including,
without limitation, recovery of damages from the Executive.
8. Termination of Employment.
(a) Permitted Terminations. The Executive's employment hereunder may
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be terminated during the Employment Period without any breach of this Agreement
only under the following circumstances:
(i) Death. The Executive's employment hereunder shall
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terminate upon the Executive's death;
(ii) By the Company. The Company may terminate the
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Executive's employment:
(A) if the Executive shall have been unable to perform
all of the Executive's duties hereunder by reason of illness, physical or mental
disability or other similar incapacity, which inability shall continue for more
than three consecutive months ("Disability");
(B) for Cause; or
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(iii) By the Executive. The Executive may terminate his
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employment with the Company for Good Reason.
(b) Termination. Any termination of the Executive's employment by the
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Company or the Executive (other than because of the Executive's death) shall be
communicated by written Notice of Termination to the other party hereto in
accordance with Section 11 hereof. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon, if any, and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated.
Termination of the Executive's employment shall take effect on the Date of
Termination.
9. Compensation Upon Termination.
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(a) Death. If the Executive's employment is terminated during the
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Employment Period as a result of the Executive's death, (i) the Company shall
pay to the Executive's estate, or as may be directed by the legal
representatives of such estate, the Executive's pro rata Base Salary through the
Date of Termination and all other unpaid amounts, if any, to which the Executive
is entitled as of the Date of Termination in connection with any fringe benefits
or under any bonus or incentive compensation plan or program of the Company
pursuant to Sections 5(b) and (c) hereof, at the time such payments are due, and
neither the Company nor Parent shall have any further obligations to the
Executive under this Agreement (other than pursuant to any life insurance policy
for the benefit of the Executive).
(b) Disability. If the Company terminates the Executive's employment
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during the Employment Period because of the Executive's Disability, (i) the
Company shall pay the Executive the Executive's pro rata Base Salary through the
Date of Termination and all other unpaid amounts, if any, to which the Executive
is entitled as of the Date of Termination in connection with any fringe benefits
or under any bonus or incentive compensation plan or program of the Company
pursuant to Sections 5(b) and (c) hereof, at the time such payments are due, and
(ii) neither the Company nor Parent shall have any further obligations to the
Executive under this Agreement (other than with respect to any disability policy
maintained for the benefit of the Executive),
(c) By the Company for Cause. If the Company terminates the
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Executive's employment during the Employment Period for Cause or if the
Executive voluntarily terminates the Executive's employment during the
Employment Period without Good Reason, (i) the Company shall pay the Executive
the Executive's pro rata portion of the Executive's Base Salary through the Date
of Termination and all other unpaid amounts, if any, to which Executive is
entitled as of the Date of Termination in connection with any fringe benefits or
under any bonus or incentive compensation plan or program of the Company
pursuant to Sections 5(b) and (c) hereof, at the time such payments are due,
(ii) the Executive shall fully and immediately forfeit the Executive's rights
with respect to any and all outstanding stock options granted to the Executive
under the Parent Scheme and which have not yet become vested and (iii) neither
the Company nor Parent shall have any further obligations to the Executive under
this Agreement.
(d) By the Company without Cause; By the Executive for Good Reason.
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(A) During the Transition Employment Period. If the Company terminates
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the Executive's employment during the Transition Employment Period other than
for Cause, disability or death, or the Executive terminates his employment for
Good Reason during such Period, (i) the Company shall pay the Executive the
Executive's pro rata portion of Base Salary through the Date of Termination and
all other accrued but unpaid amounts, if any, to which the Executive is entitled
as of the Date of Termination in connection with any fringe benefits or under
any bonus or incentive compensation plan or program of the Company, at the time
such payments are due, (ii) the Initial Options, deferred and incentive
compensation or bonus amounts (excluding the Target Bonus and the Retention
Bonus) awarded by the Company and other contingent or deferred compensation
awards or grants made by the Company, or otherwise made in connection with the
Executive's employment hereunder, shall be fully vested and nonforfeitable as of
the Date of Termination, except to the extent inconsistent with the terms of the
Parent Option Scheme in which event the Company shall pay in cash to the
Executive an amount equivalent to the fair market in-the-money value of such
Initial Options as calculated as of the Date of Termination, (iii) the Company
shall; subject to Sections 9(e) and 9(f) hereof, pay the Executive an aggregate
amount equal to 12 months of the Executive's Base Salary, plus 100% of the
Executive's Target Bonus, payable in equal monthly installments on the Company's
regular salary payment dates for such number of months specified above, (iv) the
benefits provided to or on behalf of the Executive pursuant to Section 5(e) of
this Agreement (including but not limited to medical, health, life, accident,
disability and other welfare benefits) shall be continued to be provided to or
on behalf of the Executive for a 12 month period commencing on the Date of
Termination, unless and until the Executive receives any such or similar
benefits while employed in any capacity by any other employer during such 12
month period, and (v) neither the Company nor Parent shall have any further
obligations to the Executive under this Agreement (except as otherwise set forth
in this Agreement). For purposes of clarity, it is understood and agreed between
the parties that no further accrual of pension or 401(k) benefits shall be
provided to the Executive (other than earnings on existing accounts and
balances) after the Date of Termination.
(B) After the Transition Employment Period. If the Company terminates
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the Executive's employment after the Transition Employment Period other than for
Cause, disability or death, or the Executive terminates his employment for Good
Reason after such Period, (i) the Company shall pay the Executive the
Executive's pro rata portion of Base Salary through the Date of Termination and
all other accrued but unpaid amounts, if any, to which the Executive is entitled
as of the Date of Termination in connection with any fringe benefits or under
any bonus or incentive compensation plan or program of the Company, at the time
such payments are due, (ii) the Initial Options, deferred and incentive
compensation or bonus amounts (excluding the Target Bonus) awarded by the
Company and other contingent or deferred compensation awards or grants made by
the Company, or otherwise made in connection with the Executive's employment
hereunder, shall be fully vested and non-forfeitable as of the Date of
Termination, except to the extent inconsistent with the terms of the Parent
Option Scheme in which event the Company shall pay in cash to the Executive an
amount equivalent to the fair market in-the-money value of such Initial Options
as calculated as of the Date of Termination, (iii) the Company shall, subject to
Sections 9(e) and 9(f) hereof, pay the Executive an amount equal to 6 months of
the Executive's Base Salary, payable in equal monthly installments on the
Company's regular salary payment dates for such number of months specified
above, (iv) the benefits provided to or on behalf of the Executive pursuant to
Section 5(e) of this Agreement (including but not limited to medical, health,
life, accident, disability and other welfare benefits) shall he continued to be
provided to or on
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behalf of the Executive for a 6 month period commencing on the Date of
Termination, unless and until the Executive receives any such or similar
benefits while employed in any capacity by another employer during such 6 month
period, and (v) neither the Company nor Parent shall have any further
obligations to the Executive under this Agreement (except as otherwise set forth
in this Agreement). For purposes of clarity, it is understood and agreed between
the parties that no further accrual of pension or 401(k) benefits shall be
provided to the Executive (other than earnings on existing accounts and
balances) after the Date of Termination.
(e) Parachute Limitations. Notwithstanding any other provision of this
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Agreement or of any other agreement, contract or understanding heretofore or
hereafter entered into by the Executive with the Company or any Affiliate,
except an agreement, contract or understanding hereafter entered into that
expressly modifies or excludes application of this Section 9(e) (the "Other
Agreements"), and notwithstanding any formal or informal plan or other
arrangement heretofore or hereafter adopted by the Company (or any Affiliate)
for the direct or indirect compensation of the Executive (including groups or
classes of participants or beneficiaries of which the Executive is a member),
whether or not such compensation is deferred, is in cash, or is in the form of a
benefit to or for the Executive (a "Benefit Plan"), if the Executive is a
"disqualified individual" (as defined in Section 280G(c) of the Code), the
Executive shall not have any right to receive any payment or benefit under this
Agreement, any Other Agreement or any Benefit Plan (i) to the extent that such
payment or benefit, taking into account all other rights, payments or benefits
to or for the Executive under this Agreement, all Other Agreements and all
Benefit Plans, would cause any payment or benefit to the Executive under this
Agreement, any Other Agreement or any Benefit Plan to be considered a "parachute
payment" within the meaning of Section 280G(b)(2) of the Code as then in effect
(a "Parachute Payment") and (ii) if, as a result of receiving a Parachute
Payment, the aggregate after-tax amount received by the Executive under this
Agreement, all Other Agreements and all Benefit Plans would be less than the
maximum after-tax amount that could be received by the Executive without causing
any such payment or benefit to be considered a Parachute Payment. In the event
that the receipt of any such payment or benefit under this Agreement, any Other
Agreement or any Benefit Plan would cause the Executive to be considered to have
received a Parachute Payment that would have the adverse after-tax effect
described in clause (ii) of the preceding sentence, then the Executive shall
have the right, in the Executive's sole discretion, to designate those rights,
payments or benefits under this Agreement, any Other Agreement and any Benefit
Plan that should be reduced or eliminated so as to avoid having the payment or
benefit to the Executive under this Agreement be deemed to be a Parachute
Payment.
(f) Liquidated Damages. The parties acknowledge and agree that damages
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suffered by the Executive as a result of termination by the Company without
Cause shall be extremely difficult or impossible to establish or prove, and
agree that the Severance Payments shall constitute liquidated damages for any
breach of this Agreement by the Company through the Date of Termination. The
Executive agrees that, except for such other payments and benefits to which the
Executive may be entitled as expressly provided by the terms of this Agreement
or any applicable Benefit Plan, such liquidated damages shall be in lieu of all
other claims that the Executive may make by reason of termination of his
employment or any such breach of this Agreement and that, as a condition to
receiving the Severance Payments, the Executive will execute a release of claims
in a form reasonably satisfactory to the Company and Parent.
10. Noncompetition and Nonsolicitation.
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(a) Noncompetition. The Executive acknowledges that in the course of
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his employment with the Company and its Affiliates and their predecessors, he
has and will continue to become familiar with the trade secrets of, and other
confidential information concerning, the Company and its Affiliates, that the
Executive's services will be of special, unique and extraordinary value to the
Company and its Affiliates and that the Company's ability to accomplish its
purposes and to successfully pursue its business plan and compete in the
marketplace depend substantially on the skills and expertise of the Executive.
Therefore, and in further consideration of the compensation being paid to the
Executive hereunder, the Executive agrees that, during the Employment Period and
for a period of 24 months following the Executive's termination of employment
with the Company for any reason, he shall not directly or indirectly own,
manage, control, participate in, consult with, render services for, or in any
manner engage in any business competing with the businesses of the Company
(including, without limitation, international network and interactive
integration services, e-business strategy, and interactive marketing and
branding), its Affiliates, or any business in which the Company or its
Affiliates has commenced negotiations or has requested and received information
relating to the acquisition of such business within 18 months prior to the
termination of the Executive's employment with the Company, in any country where
the Company, its Affiliates, or other aforementioned business conducts business.
(b) Nonsolicitation. During the Employment Period and for a period of
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24 months following the Executive's termination of employment with the Company
for any reason, the Executive shall not directly or indirectly through another
entity (i) induce or attempt to induce any employee of the Company or any
Affiliate to leave the employ of the Company or such Affiliate, or in any way
willfully interfere with the relationship between the Company or any Affiliate
and any employee thereof, (ii) induce or attempt to induce any customer,
supplier, licensee or other business relation of the Company or any Affiliate to
cease doing business with the Company or such Affiliate, or in any way interfere
with the relationship between any such customer, supplier, licensee or business
relation and the Company or any Affiliate or (iii) initiate or engage in any
discussions regarding an acquisition of, or the Executive's employment (whether
as an employee, an independent contractor or otherwise) by, any businesses in
which the Company or any of its Affiliates has entertained discussions or has
requested and received information relating to the acquisition of such business
by the Company or its Affiliates upon or within the 18-month period prior to the
Date of Termination.
(c) Enforcement. If, at the time of enforcement of this Section 10, a
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court holds that the restrictions stated herein are unreasonable under
circumstances then existing, the parties hereto agree that the maximum duration,
scope or geographical area reasonable under such circumstances shall be
substituted for the stated period, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum
duration, scope and area permitted by law. Because the Executive's services are
unique and because the Executive has access to confidential information, the
parties hereto agree that money damages would be an inadequate remedy for any
breach of any provision of this Agreement. Therefore, in the event of a breach
or threatened breach by the Executive of any provision of this Agreement, the
Company may, in addition to other rights and remedies existing in its favor,
apply to any court of competent jurisdiction for specific performance and/or
injunctive or other relief in order to enforce, or prevent any violations of,
the provisions hereof (without posting a bond or other security).
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11. Notices. All notices, demands, requests or other communications
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required or permitted to be given or made hereunder shall be in writing and
shall be delivered, telecopied or mailed by first class registered or certified
mail, postage prepaid, to the Company: at its principal office location; and to
the Executive: at his address as listed on the Company's then current payroll;
or to such other address as may be designated by either party in a notice to the
other. Each notice, demand, request or other communication that shall be given
or made in the manner described above shall be deemed sufficiently given or made
for all purposes three days after it is deposited in the U.S. mail, postage
prepaid, or at such time as it is delivered to the addressee (with the return
receipt, the delivery receipt, the answer back or the affidavit of messenger
being deemed conclusive evidence of such delivery) or at such time as delivery
is refused by the addressee upon presentation.
12. Severability. The invalidity or unenforceability of any one or
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more provisions of this Agreement shall not affect the validity or
enforceability of the other provisions of this Agreement, which shall remain in
full force and effect.
13. Survival. It is the express intention and agreement of the parties
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hereto that the provisions of Sections 7, 9, 10 and 11 hereof shall survive the
termination of employment of the Executive. In addition, all obligations of the
Company to make payments hereunder shall survive any termination of this
Agreement on the terms and conditions set forth herein.
14. Assignment. The rights and obligations of the parties to this
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Agreement shall not be assignable or delegable, except that (i) in the event of
the Executive's death, the personal representative or legatees or distributees
of the Executive's estate, as the case may be, shall have the right to receive
any amount owing and unpaid to the Executive hereunder and (ii) the rights and
obligations of the Company hereunder shall be assignable and delegable in
connection with any subsequent merger, consolidation, sale of all or
substantially all of the assets of the Company or similar reorganization of a
successor corporation.
15. Binding Effect. Subject to any provisions hereof restricting
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assignment, this Agreement shall be binding upon the parties hereto and shall
inure to the benefit of the parties and their respective heirs, devisees,
executors, administrators, legal representatives, successors and assigns.
16. Amendment; Waiver. This Agreement shall not be amended, altered or
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modified except by an instrument in writing duly executed by the parties hereto.
Neither the waiver by either of the parties hereto of a breach of or a default
under any of the provisions of this Agreement, nor the failure of either of the
parties, on one or more occasions, to enforce any of the provisions of this
Agreement or to exercise any right or privilege hereunder, shall thereafter be
construed as a waiver of any subsequent breach or default of a similar nature,
or as a waiver of any such provisions, rights or privileges hereunder.
17. Headings. Section and subsection headings contained in this
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Agreement are inserted for convenience of reference only, shall not be deemed to
be a part of this Agreement for any purpose, and shall not in any way define or
affect the meaning, construction or scope of any of the provisions hereof.
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18. Governing Law. This Agreement, the rights and obligations of the
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parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed in accordance with the laws of the State of Virginia (but not
including the choice of law rules thereof).
19. Entire Agreement. This Agreement constitutes the entire agreement
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between the parties respecting the employment of the Executive and supercedes
any agreement relating to the subject matter hereof upon commencement of the
Initial Term, there being no representations, warranties or commitments except
as set forth herein.
20. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be an original and all of which shall be
deemed to constitute one and the same instrument.
21. Definitions.
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"Affiliates" means any entity, as may from time to time be designated
by the Board, that is a subsidiary corporation of the Company, and each other
entity directly or indirectly controlling or controlled by or under common
control with the Company. For purposes of this definition, "control" means the
power to direct the management and policies of such entity, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meaning correlative to the foregoing.
"Board" means the board of directors of Parent or its delegee.
"Cause" means (i) the Executive's commission of a felony or crime
involving moral turpitude or the commission of any other act or omission
involving dishonesty or fraud with respect to the Company or any of its
Affiliates or any of their customers or suppliers, (ii) the Executive's conduct
which brings the Company or any Affiliate into substantial public disgrace or
disrepute, (iii) the Executive's substantial and repeated failure to perform
duties of the office held by the Executive as reasonably directed by the Board,
and such failure is not cured within 30 days after the Executive receives
written notice thereof from the Board, (iv) gross negligence or willful
misconduct with respect to the Company or any of its Affiliates, or (v) the
Company's substantial failure to achieve annual performance goals as determined
by the Board and agreed to by the Executive; or (vi) the Executive's breach of
Section 8 or 10 of this Agreement.
"Company" means Proxicom, Inc. and its successors and assigns.
"Date of Termination" means (i) if the Executive's employment is
terminated by the Executive's death, the date of the Executive's death; (ii) if
the Executive's employment is terminated because of the Executive's Disability,
30 days after Notice of Termination, provided that the Executive shall not have
returned to the performance of the Executive's duties on a full-time basis
during such 30-day period; (iii) if the Executive's employment is terminated by
the Company for Cause, the date specified in the Notice of Termination; or (iv)
if the Executive's employment is terminated during the Employment Period for any
other reason, the date on which Notice of Termination is given.
"Severance Payments" means the payments and benefits that the
Executive receives from the Company after termination of employment pursuant to
Section 9 of this Agreement.
10
"Transition Employment Period" means the one-year period commencing at
the Effective Time and ending on the first anniversary of the Effective Time.
"Good Reason" means, in the absence of a written consent of the
Executive: (i) the assignment to the Executive (other than an isolated,
insubstantial or inadvertent assignment not occurring in bad faith) of any
duties inconsistent in any material respect with the Executive's position
(including status, offices, titles and reporting requirements), authority,
duties or responsibilities as contemplated by Section 3 of this Agreement and
which is not remedied by the Company within 10 days after receipt of notice
thereof given by the Executive, (ii) any failure by the Company to comply with
any of the provisions of Section 5 of this Agreement, other than an isolated,
insubstantial or inadvertent failure not occurring in bad faith and which is
remedied by the Company within 10 days after receipt of notice thereof given by
the Executive; or (iii) within the Transition Employment Period the Company's
requiring the Executive to be based at any office or location more than 50 miles
from that identified in Section 4 hereof.
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IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement, or have caused this Agreement to be duly executed on their behalf, as
of the day and year first hereinabove written.
DIMENSION DATA HOLDINGS PLC
By: /s/ X.X. Xxxxxxx
---------------------------------
Name: X.X. Xxxxxxx
Title: Director
PROXICOM, INC.
By: /s/ Xxx X. Xxxxxx
---------------------------------
Name: Xxx X. Xxxxxx
Title: EVP, Operations
/s/ Xxxx X. Xxxxxxxxx
------------------------------------
Xxxx X. Xxxxxxxxx
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