EXHIBIT 10.18
March 20, 2002
EMPLOYMENT AGREEMENT
THIS AGREEMENT, effective on agreed upon start date (tentatively set for March
25, 2002), is between UBICS INC., a Delaware Corporation (the "Company"), and
XXXX XXXXX (the "Employee").
WITNESSETH:
WHEREAS, the Company is engaged in the business of providing information
technology services to various organizations:
WHEREAS, the Company desires to procure the services of Employee and Employee is
willing to be employed by the Company, upon the terms and subject to the
conditions hereinafter set forth:
Intending to be legally bound, the Company agrees to employ Employee, and
Employee hereby agrees to be employed by the Company, upon the following terms
and conditions:
ARTICLE I
EMPLOYMENT
1.00 Expiration. This offer will automatically expire at 8:00 a.m. EST Monday,
April 1, 2002 if the parties have not executed this agreement with signed
acceptance in total.
1.01 Office. Employee is hereby employed as Vice President, National Sales
Solutions of the Company and to perform such duties and responsibilities as the
Company's By-laws and its management may from time to time designate. This
position will initially be designated as approximately 70% Sales and 30% Sales
Management and will report to the CEO of UBICS.
1.02 Term. Subject to the terms and provisions of Article II hereof, Employee's
employment hereunder shall commence on agreed upon start date at UBICS, Inc.
Canonsburg Home Office and continuing until such time as the employment is
terminated as set forth in this agreement, and subject to such other terms and
conditions as set forth in this Agreement.
1.03 Salary. A salary shall be paid to Employee by the Company during the term
of this Agreement at the rate of $150,000.00 (One-Hundred Fifty Thousand
Dollars) gross, per annum, payable semi-monthly in accordance with the Company's
normal payroll practices (the "Salary"). The Salary may be reviewed from time to
time, such review, if any, to be determined by the Compensation Committee of the
Board of Directors, in its sole discretion.
1.04 Commissions. Employee will be eligible for an annual performance
commissions (based on a 12 month period running January to December) of up to
$100,000 (One-Hundred Thousand Dollars) pursuant to the terms and conditions set
forth below.
In order to be eligible for an annual performance commissions, Employee must be
an Employee in good standing with the Company. Employee will not be eligible for
the payment of an annual commissions in the event (i) he is terminated for cause
due to Employee's willful misconduct, or (ii) he is terminated for cause for
gross negligence.
Except as otherwise provided herein, Employee is not entitled to any commissions
or other payments from the Company following any termination of his employment
hereunder.
a) For the period from agreed upon start date through December 31, 2002,
employee is eligible for a performance commission up to $100,000 pursuant
to attainment of a quota of $3M collected revenue for the remainder of the
2002 year.
b) For the period from January 1, 2003 through December 31, 2003, employee is
eligible for a performance commission up to $100,000 pursuant to attainment
of a quota of $5M collected revenue for the 2003 year.
c) For any period following December 31, 2003, employee is eligible for a
performance commission up to $100,000 pursuant to attainment of the quotas
to be established within sixty (60) days prior to the new fiscal year.
d) Employee will receive by April 1, 2002 an attachment that defines the
commission program and eligibility requirements for commissions.
1.05 Out of Pocket Expenses. Employee shall be entitled to reimbursement for
reasonable out-of-pocket expenses incurred in performing his duties in
accordance with the general policy of Company, as it may change from time to
time, provided that Employee shall provide an itemized account together with
supporting receipts for such expenditure in accordance with the requirements set
forth in the Internal Revenue Code of 1986, as amended, and related regulations,
subject to the right of the Company at any time to place reasonable limitations
on such expenses thereafter to be incurred or reimbursed.
1.06 Employee Benefits. Subject to any limitations imposed by applicable law,
Employee shall be covered by such major medical and health insurance, and 401(k)
plans as may be available generally to employees of the Company and shall be
entitled to receive such other benefits and perquisites as may be determined by
the Board of Directors or Compensation Committee.
1.07 Vacation. You will be entitled to Company paid holidays and six (6) accrued
sick days annually. Employee will be entitled to four (4) weeks of vacation per
calendar year. Employee shall not be entitled to receive any payment for unused
vacation or to carry over unused vacation from year to year.
1.08 Taxes. UBICS will withhold any applicable federal and state taxes for
compensation paid to Employee.
1.09 Compliance with Company Policies and Laws. In performing the duties and
responsibilities set forth in this Agreement, Employee shall use his best
efforts to comply with federal, state and local laws, and shall abide by all
policies, procedures and programs of UBICS.
1.10 Work Product. All work or services rendered under this Agreement, including
reports, papers, and other information ("Work Product"), are the exclusive
property of UBICS and all right, title and interest in such Work Product shall
vest in UBICS and shall be deemed to be work rendered under this agreement.
Employee agrees to assign all
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his right, title and interest in such Work Product to UBICS and will otherwise
cooperate as may be necessary to secure such rights for UBICS. All files, lists,
reports and other property relating to the business of UBICS, whether prepared
by the Employee or otherwise, shall remain the exclusive property of UBICS and
shall not be removed from the premises of UBICS or UBICS's clients under any
circumstances whatsoever without the prior written consent of UBICS.
ARTICLE II
EMPLOYMENT AT WILL
2.01 Employment at Will: The parties agree and acknowledge that the employment
relationship created by this Agreement is at will and that either party may
terminate this agreement with or without cause. The party terminating the
agreement shall provide the other party with two (2) weeks notice of the party's
intent to terminate or, in lieu of notice, two weeks compensation. However, any
such notice shall not in any way alter or modify the at will employment
relationship established by this agreement. All payments due to Employee under
this agreement and all outstanding advances due to UBICS by the Employee shall
be settled in full within 30 days of the date of termination.
ARTICLE III
EMPLOYEE'S ACKNOWLEDGMENTS
Employee acknowledges that: (a) in the course of Employee's employment by the
Company, Employee will acquire information concerning the Company's sales, sales
volume, sales methods, sales proposals, customers and prospective customers,
identity of key personnel in the employment of the Company, amount or kind of
customer's purchases from the Company, the Company's recruiting method and
practices, computer programs, system documentation, special hardware, product
hardware, related software development, manuals, formulae, processes, methods
and other confidential or proprietary information belonging to the Company
relating to the Company's affairs (collectively referred to herein as the
"Confidential Information"); (b) the Confidential Information is the property of
the Company; (c) the use, misappropriation or disclosure of the Confidential
Information would constitute a breach of trust and could cause irreparable
damage to the Company; and (d) it is essential for the protection of the
Company's goodwill and to the maintenance of the Company's competitive position
that the Confidential Information be kept secret and that Employee not disclose
the Confidential Information to others or use the Confidential Information to
Employee's own advantage or the advantage of others.
Employee further acknowledges that it is essential for the proper protection of
the business of the Company that Employee be restrained from: (a) soliciting or
inducing any employee of the Company to leave the employment of the Company, (b)
from soliciting the trade of or trading with the customers of the Company for a
competitive purpose pursuant to P. 4.04 and 4.05 hereof.
ARTICLE IV
EMPLOYEE'S CONVENANTS AND AGREEMENTS
4.01 Nondisclosure or Utilization of Confidential Information. Employee agrees
to hold and safeguard the Confidential Information in trust for the Company and
its successors and assigns and agrees that he shall not, without the prior
written consent of the
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Company, misappropriate, disclose or use for any reason or purpose, or make
available to anyone for use outside the Company's organization at any time for
any reason or purpose, either during his employment by the Company or subsequent
to the termination of his employment by the Company for any reason, any of the
Confidential Information, whether or not developed by Employee, except as
required in the performance of Employee's duties to the Company.
4.02 Duties. Employees agrees to be a loyal employee of the Company. Employee
agrees to devote his full working time and best efforts to the performance of
his duties for the Company, to give proper time and attention to furthering the
Company's business, and to comply with all rules, regulations and instructions
established or issued by the Company. Employee further agrees that during the
term of this Agreement, Employee shall not, directly or indirectly, engage in
any business which would detract from Employee's ability to apply his full
working time and best efforts to the performance of his duties hereunder.
Employee shall not perform services for other companies without the approval of
management. Employee also agrees that he shall not usurp any corporate
opportunities of the Company.
4.03 Return of Materials. Upon the termination of Employee's employment by the
Company for any reason, Employee shall promptly deliver to the Company all
correspondence, drawings, blueprints, manuals, letters, notes, notebooks,
reports, programs, proposals and any documents concerning the Company's
customers or concerning products or processes used by the Company and, without
limiting the foregoing, will promptly deliver to the Company any and all other
documents or materials containing or constituting Confidential Information.
4.04 Nonsolicitation of Customers. Employee agrees that during his employment by
the Company and for two (2) years following termination of Employee's employment
with the Company for any reason, he shall not, directly or indirectly, solicit
the trade of, or trade with, any customer or prospective customer of the Company
in competition with the Company.
4.05 Nonsolicitation of Employees. Employee agrees that during his employment by
the Company and for two (2) years following termination of Employee's employment
with the Company for any reason, Employee shall not, directly or indirectly,
solicit or induce, or attempt to solicit or induce, any employee of the Company
to leave the Company for any reason whatsoever, or hire an employee of the
Company.
ARTICLE V
EMPLOYEE'S REPRESENTATIONS AND WARRANTIES
5.01 No Prior Agreements. Employee represents and warrants that he is not a
party to or otherwise subject to or bound by the terms of any contract,
agreement or understanding which in any manner would limit or otherwise affect
his ability to perform his obligations hereunder, including without limitation
any contract, agreement or understanding containing terms and provisions similar
in any manner to those contained in Article IV hereof.
5.02 Remedies. In the event of a breach by Employee of the terms of this
Agreement, the Company shall be entitled, if it shall so elect, to institute
legal proceedings to obtain
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damages for any such breach, or to enforce the specific performance of this
Agreement by Employee and to enjoin Employee from any further violation of this
Agreement and to exercise such remedies cumulatively or in conjunction with all
other rights and remedies provided by law. Employee acknowledges, however, that
the remedies at law for any breach by him of the provisions of this Agreement
may be inadequate and that the Company shall be entitled to seek injunctive
relief against him in the event of any breach.
ARTICLE VI
SEVERABILITY
Severability. In the event that one or more of the provisions of the agreement
shall for any reason be held to be invalid, illegal or unenforceable, the
remaining provisions of this agreement shall be unimpaired, and the invalid,
illegal or unenforceable provision shall be replaced by a mutually acceptable
provision which being valid, legal and enforceable, comes closest to the
intention of the parties underlying the invalid, illegal or unenforceable
provision.
ARTICLE VII
MISCELLANEOUS
7.01 Authorization to Modify Restrictions. It is the intention of the parties
that the provisions of Article IV hereof shall be enforceable to the fullest
extent permissible under applicable law, but that the unenforceability (or
modification to conform to such law) of any provision or provisions hereof shall
not render unenforceable, or impair, the remainder thereof. If any provision or
provisions hereof shall be deemed invalid or unenforceable, either in whole or
in part, this Agreement shall be deemed amended to delete or modify, as
necessary, the offending provision or provisions and to alter the bounds thereof
in order to render it valid and enforceable.
7.02 Entire Agreement. This Agreement represents the entire agreement of the
parties and may be amended only by a writing signed by each of them.
7.03 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
7.04 Agreement Binding. The obligation of Employee and Employer under this
Agreement shall continue after the termination of Employee's employment with the
Company for any reason, with or without cause, and shall be binding on and inure
to the benefit of their respective heirs, executors, legal representatives,
successors and assigns.
7.05 Counterparts, Section Headings. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument. The section
headings of this Agreement are for convenience for reference only and shall not
affect the construction or interpretation of any of the provisions hereof.
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7.06 Binding Arbitration. The parties agree that all claims, disputes and other
matters in question between them, arising out of or related to this Agreement,
and the rights, duties and obligations arising thereunder or the breach thereof,
shall be decided by common-law arbitration in Pittsburgh, Pennsylvania, in
accordance with the Rules of the American Arbitration Association then
prevailing, unless the parties mutually agree otherwise; provided however, the
Company shall have the right to obtain preliminary or permanent injunctive
relief from a court of appropriate jurisdiction while the arbitration process is
continuing, and/or after the Board of Arbitrators renders its decision on the
merits; provided further, if either party would be entitled to jurisdiction,
then in the interests in judicial economy, either party may litigate all
disputes against the other party and any third party in one action before a
court of appropriate jurisdiction. The parties agree that with regard to all
claims, disputes and remedies arising out of this Agreement, the American
Arbitration Association, and the Federal and State courts in Pittsburgh,
Pennsylvania and applicable appellate courts, shall have jurisdiction over their
persons. This provision shall not be deemed to confer exclusive subject matter
jurisdiction over such courts. This Agreement shall not be construed as a
consent to arbitrate any dispute with any person who is not party to this
Agreement.
ARTICLE VIII
CONTINGENCY
8.01 The offer set forth above is contingent upon UBICS' receipt of satisfactory
reference checks, background check and approval from the Compensation Committee.
IN WITNESS WHEREOF, the parties, intending to be legally bound, have executed
this agreement on the day and year set forth below.
WITNESS:
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
3-21-02
------------------------------
Date
ATTEST: UBICS, Inc.
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxxx
------------------------------ ------------------------------
Xxxxxx X. Xxxxxxx
CEO
3-20-02
------------------------------
Date
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March 26, 2002
Xxxx Xxxxx
EMPLOYMENT AGREEMENT ADENDUM
----------------------------
Effective March 25, 2002 the terms of this letter will constitute amendments as
enumerated below to your Employment Agreement dated March 20, 2002.
The parties hereto agree as follows:
1.06a Options. Employee shall be entitled to receive options
in the amount of 10,000 (Ten Thousand) shares of the
Company's Common Stock at an option price of $3.22 under
the Company's 1997 Stock Option Plan in accordance with
the terms of a separate Stock Option Agreement. The
vesting period is 3 years.
Except as set forth above, all other terms and conditions of the Employment
Agreement dated March 20, 2001 will remain unchanged and in full force and
effect.
The Finance Department has been advised. Please sign both copies of this letter,
keep one copy for your records and return one copy to UBICS, Inc.
UBICS, Inc. Accepted and agreed with the intent
to be legally bound.
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxx Xxxxx
---------------------------- ----------------------------------
Xxxxxx X. Xxxxxxx Xxxx Xxxxx
CEO Employee
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