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EXHIBIT 10.12
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of September ___,
1999, is entered into by and between THE MANAGEMENT NETWORK GROUP, INC., a
Kansas corporation (the "Company"), with offices at 0000 Xxxxxxx Xxxxxxxxx,
Xxxxxxxx Xxxx, Xxxxxx 00000, and XXXXXX XXXXX, an individual ("Employee"),
residing at 0000 X. 000xx Xxxxxxx, Xxxxxxx, Xxxxxx 00000.
RECITALS
The Company wishes to obtain the services of Employee and Employee
wishes to perform such services on the terms and conditions contained herein.
Therefore, the parties hereby agree as follows:
1. EMPLOYMENT. Subject to the terms and conditions of this Agreement,
effective as of July ____, 1999 (the "Effective Date"), the Company hereby
employs Employee as Chief Financial Officer of the Company to perform the duties
described in Section 4 hereof.
2. TERM. The term of this Agreement shall begin on the Effective Date
and will continue until ____________, 2001 unless extended on terms mutually
agreed upon between Employee and the Company or unless earlier terminated
pursuant to the provisions of Sections 7 or 8 hereof. The period from the
Effective Date until the date of termination of employment pursuant to this
Agreement is herein referred to as the "Term".
3. COMPENSATION.
3.1 SALARY. Subject to the adjustment provisions herein,
Employee shall be paid biweekly installments based upon an annual base salary of
$180,000. After ___________, 2001, the annual base salary may be increased or
decreased by such amounts as are mutually agreeable to Employee and the Company.
Amounts paid pursuant to this Section 3.1 are hereinafter referred to as "Base
Salary."
3.2 BONUS. In addition to Employee's Base Salary and subject to
such deductions as are required by law, Employee shall be entitled to receive a
bonus ("Bonus") for each fiscal year during the Term in such amount as shall be
determined in the sole discretion of the President of the Company. Before the
beginning of each quarter (measured from the Effective Date), the President
shall provide Employee in writing, mutually agreed upon objective performance
criteria for the following quarter. Within 15 days following the Effective Date,
the President shall establish the objective criteria for the first quarter. Upon
successful completion of such criteria, or in the event the Company fails to
provide such criteria on a timely basis, the Employee shall earn and be paid,
one quarter of the maximum Bonus amount established for the year. For the first
year of employment, the maximum Bonus amount shall be $40,000.
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3.3 OTHER COMPENSATION. As a part of Employee's compensation
package, the President and Chief Executive Officer of the Company shall
periodically (and in any event, annually) review Employee's compensation and
consider such modifications as may be appropriate for the Chief Financial
Officer of the Company. In connection with such review, the President and Chief
Executive Officer may consider extraordinary bonuses and other forms of
compensation to Employee as a result of successful acquisitions by the Company,
the initial public offering of the Company's (or any successor entity's) common
stock or similar events.
4. DUTIES. Employee shall, during the term hereof, be an officer of the
Company and have the title of Chief Financial Officer of the Company, and shall
perform such duties as and have such authority as are customary and usual for
such position and as may be directed by the President and Chief Executive
Officer of the Company. Without limiting the generality of the foregoing:
4.1 FULL TIME. Employee shall devote Employee's full working
time to the business of the Company and shall, in accordance with the highest
professional standards, seek to maximize the financial success of the Company's
business and to optimize the goodwill and reputation of the Company within its
industry and with its customers. During the term of this Agreement, Employee
agrees that he will not become involved in the active ownership or management of
any business enterprise that will interfere with the performance of his duties
hereunder. Employee further warrants that he will not engage, directly or
indirectly, in any other business activity (whether or not pursued for pecuniary
advantage) that is or may be in conflict with or that might place him in a
conflicting position to that of the Company. So that the Company may be aware of
the extent of any other demands upon Employee's time and attention, Employee
shall disclose in confidence to the Company the nature and scope of any other
business activity in which he is or becomes engaged during his employment with
the Company. Employee has disclosed to Company his involvement in the management
of certain family-owned businesses, Ultra Rev, Inc. and X. X. Xxxxxxx Company,
Inc., and Company hereby consents to Employee's continued involvement in such
businesses, so long as such involvement does not materially affect the ability
of Employee to discharge his responsibilities to Company under this Agreement.
Employee also warrants that he is not a party to any valid or binding agreement
or legal relationship whose performance or execution would interfere with the
performance of his duties under this Agreement. Employee may serve as a director
of other corporations or entities with the prior approval of the President and
Chief Executive Officer, which approval will not be unreasonably withheld.
4.2 REPORTING. Employee shall report to the President and Chief
Executive Officer of the Company.
5. EXPENSES. Employee will be authorized to incur reasonable and
necessary expenses in connection with the discharge of Employee's duties and in
promoting the business of the Company. The Company will reimburse Employee for
all such reasonable and necessary expenses in accordance with its expense
reimbursement policy and upon presentation of a properly itemized account of
such expenditures, setting forth the business reasons for such expenditures.
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6. OTHER BENEFITS. Except as otherwise set forth herein, Employee shall
be entitled to paid vacation and the other fringe benefits as set forth below.
6.1 ANNUAL ACCRUAL OF VACATION. Employee shall be entitled to
three (3) weeks paid vacation for each year of service under this Agreement,
during which time Employee's compensation shall be paid in full. On the first
day of the term of this Agreement, and on each anniversary date during the term
of this Agreement, Employee shall earn the three (3) weeks of paid vacation
time. Employee may accumulate vacation time to a maximum of four (4) weeks and
may carry such accumulated (earned and unused) vacation time from one year of
service to another year of service, subject to such maximum. At the end of each
year of service during the term of this Agreement, Employee shall have the
option to require the Company to pay to Employee an amount for any part or all
of the Employee's earned and unused vacation time. Upon termination of
employment, the Company shall purchase any earned and unused vacation time up to
the maximum carry-over vacation time of four (4) weeks.
6.2 FRINGE BENEFITS. Employee shall be entitled to such pension,
profit sharing and fringe benefits such as hospitalization, medical, life and
other insurance benefits, vacation, sick pay and short-term and long-term
disability as the Board of Directors of the Company may, from time to time,
determine to provide for the key executives of the Company. The benefits
described in this Section 6.2 are collectively referred to herein as "Fringe
Benefits."
7. TERMINATION BY THE COMPANY DUE TO DEATH, DISABILITY OR CAUSE.
7.1 DEATH, DISABILITY. In the event of Employee's death during
the Term, this Agreement and the employment of Employee hereunder shall
terminate automatically as of the date of death, except that Sections 10, 11,
12, 13 and 14 shall survive such termination. In the event of Employee's
Disability (as hereinafter defined) for ninety (90) consecutive calendar days or
one hundred and twenty (120) calendar days in the aggregate during any twelve
(12) months of the Term, the Company shall have the right, by written notice to
Employee, to terminate this Agreement and the employment of Employee hereunder
as of the date of such notice, except that Sections 10, 11, 12, 13 and 14 shall
survive such termination. "Disability" for the purposes of this Agreement shall
mean Employee's physical or mental disability so as to render Employee
substantially incapable of carrying out Employee's duties under this Agreement.
In the event of termination pursuant to this Section 7.1, the Company shall not
be under any further obligation to Employee hereunder except to (a) promptly pay
Employee (i) salary and benefits (and Bonuses, if any) accrued and payable up to
the date of termination, (ii) reimbursement for expenses accrued and payable
under Section 5 hereof, and (iii) if the termination is due to Disability,
payment of Employee's monthly Base Salary on the last day of each of the 3
months immediately following termination, and (b) continue Employee's Fringe
Benefits for a period of six months from the date of termination.
7.2 CAUSE. The Company shall have the right to discharge
Employee and terminate this Agreement for Cause (as hereinafter defined) during
the Term by written notice to Employee and this Agreement shall be deemed
terminated as of the date of such notice, except that Sections 10, 11, 12, 13
and 14 shall survive such termination. For the purpose of this Agreement,
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"Cause" shall mean (a) conviction of, or a plea of nolo contendere to, a felony,
(b) the wilful, deliberate and persistent failure by Employee to perform
Employee's duties in accordance with Section 4 hereof (other than as a result of
Disability) which failure is not remedied within a reasonable period of time
after receipt of written notice from the Company, (c) the engaging by Employee
in a material act or acts of dishonesty affecting the Company, any affiliate or
any client of the Company, or (d) drunkenness or the illegal use of drugs by
Employee materially interfering with performance of Employee's obligations under
this Agreement. In the event of a termination pursuant to this Section 7.2, the
Company shall not be under any further obligation to Employee hereunder, except
to promptly pay Employee (a) salary and benefits (and Bonuses, if any) accrued
and payable up to the date of termination, (b) reimbursement for expenses
accrued and payable under Section 5 hereof, and (c) any other benefits required
by applicable law (e.g. COBRA), if eligible.
7.3 TERMINATION BY THE COMPANY OTHER THAN DUE TO DEATH,
DISABILITY OR CAUSE. This Agreement and the employment of Employee hereunder may
be terminated by the Company other than due to death, Disability or Cause by
giving thirty (30) days' prior written notice to the Employee at any time,
during the Term and such termination shall be effective as of the date of
termination stated in such notice, except that Sections 10, 11, 12, 13 and 14
shall survive such termination. In the event of a termination pursuant to this
Section 7.3, the Company shall not be under any further obligation to Employee
hereunder, except to (a) promptly pay Employee (i) salary and benefits (and
Bonuses, if any) accrued and payable up to the date of termination, and (ii)
reimbursement for expenses accrued and payable under Section 5 hereof, and (b)
pay Employee the Severance Benefits (as defined below) pursuant to Section 7.4.
7.4 SEVERANCE BENEFITS. For purposes of this Agreement,
"Severance Benefits" shall mean (a) if notice of termination is given to
Employee during the first twelve (12) months of employment (i) three (3) months
of Employee's Base Salary payable on the last business day of each of the three
(3) full calendar months following termination, and (ii) continuation of
Employee's Fringe Benefits for a period of four (4) full calendar months from
the date of termination, and (b) if notice of termination is given to Employee
following the first twelve (12) months of employment (i) six (6) months of
Employee's Base Salary payable on the last business day of each of the six (6)
full calendar months following termination, and (ii) continuation of all of
Employee's Fringe Benefits for a period of eight full calendar months from the
date of termination. To the extent any of the Fringe Benefits are not readily
available to Employee following termination of employment, the monthly cost
thereof shall be paid to Employee on the last business day of each of the
calendar months for which Employee is entitled to receive Fringe Benefits
following the date of termination of employment.
8. TERMINATION BY THE EMPLOYEE. The Employee shall have the right to
terminate Employee's employment under this Agreement by giving thirty (30) days
prior written notice to the Company at any time, and such termination shall be
effective as of the date of' termination stated in such notice, except that
Sections 10, 11, 12, 13 and 14 shall survive such termination.
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8.1 TERMINATION OTHER THAN FOR CONSTRUCTIVE TERMINATION. In the
event Employee terminates employment under this Section 8 for other than
Constructive Termination (as defined below), the Company shall not be under any
further obligation to Employee hereunder, except to promptly pay Employee (a)
salary and benefits (and Bonuses, if any) accrued and payable up to the date of
termination, and (b) reimbursement for expenses accrued and payable under
Section 5 hereof.
8.2 DEFINITION. Notwithstanding anything in this Agreement to
the contrary, a "Constructive Termination" will be deemed to have occurred
pursuant to this Section 8 if there should occur the following:
(a) a material adverse change in Employee's position causing it
to be of materially less stature or responsibility without Employee's
written consent, and such a materially adverse change shall in all
events be deemed to occur if Employee no longer serves as Chief
Financial Officer, unless Employee consents in writing to such change,
(b) a reduction, without Employee's written consent or except as
expressly permitted by this Agreement, in Employee's Base Salary and
Fringe Benefits by more than five percent (5%), or
(c) a relocation of his principal place of employment by more
than 50 miles without Employee's consent.
8.3 CONSTRUCTIVE TERMINATION. In the event Employee terminates
his employment due to a Constructive Termination, the Company shall not be under
any further obligation to Employee hereunder, except to pay Employee (a) within
thirty (30) days of such termination (i) salary and benefits (and Bonuses, if
any) accrued and payable up to the date of termination, and (ii) reimbursement
for expenses accrued and payable under Section 5 hereof, and (b) Severance
Benefits pursuant to Section 7.4 based upon the date of termination of
employment.
9. CHANGE IN CONTROL BENEFITS. Should there occur a Change in Control
(as defined below), then the following provisions shall become applicable:
9.1 CONTINUATION OF SERVICES. During the period (if any)
following a Change in Control that Employee shall continue to provide services
under this Agreement, then the terms and provisions of this Agreement shall
continue in full force and effect.
9.2 Notwithstanding any other provision of Sections 7 or 8, in
the event of (a) a termination by the Company pursuant to Section 7.3 at any
time within twelve (12) months after a Change in Control, or (b) a Constructive
Termination by the Company pursuant to Section 8 at any time within twelve (12)
months after a Change in Control, the Company shall (y) pay Employee within
thirty (30) days of such event (i) salary and benefits (and Bonuses, if any)
accrued and payable up to the date of such event, (ii) reimbursement for
expenses accrued and payable under Section 5 hereof, and (z) pay Employee
Severance Benefits pursuant to Section 7.4 based upon the date of termination of
employment.
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9.3 DEFINITION. For purposes of this Section 9, a "Change of
Control" shall be deemed to occur upon the earlier to occur of an event
described below, the Company entering a definitive agreement to accomplish a
transaction or event as described below, or a vote of the directors of the
Company approving a definitive agreement for such a transaction or event as
described below:
(a) the sale, lease, conveyance or other disposition of at least
fifty percent (50%) of the Company's assets as an entirety or
substantially as an entirety to any person, entity or group of persons
acting in concert other than in the ordinary course of business;
(b) any transaction or series of related transactions (as a
result of a tender offer, merger, consolidation or otherwise) that
results in any Person (as defined in Section 13(h)(8)(E) under the
Securities Exchange Act of 1934) becoming the beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934),
directly or indirectly, of more than 50% of the aggregate voting power
of all classes of common equity of the Company, except if such Person is
(i) a subsidiary of the Company, (ii) an employee stock ownership plan
for employees of the Company or (iii) a company formed to hold the
Company's common equity securities and whose stockholders constituted at
the time such company became such holding company, substantially all the
stockholders of the Company; or
(c) the liquidation or winding up of the business of the
Company.
10. RESTRICTIONS.
10.1 NON-DISCLOSURE. Employee agrees that during and after the
Term any confidential information concerning the Company or its business or any
Affiliates of the Company (including, without limitation, trade secrets, plans,
processes, customer lists, contracts and compilations of information, records
and specifications) which comes to Employee in the course of Employee's
employment and which is not (independent of disclosure by Employee) public
knowledge or general knowledge in the trade, shall remain confidential and,
except as required by legal process, may not be used or made available for any
purpose except as necessary in the performance of Employees duties hereunder.
Employee agrees that, upon termination of Employee's employment hereunder,
Employee will promptly deliver to the Company all materials constituting
confidential information (including all copies thereof) that are in the
possession of, or under the control of, the Employee, and Employee will not make
or retain any copies or extracts of such materials.
10.2 NON-SOLICITATION. During the period of Employee's
employment, and for a period of two (2) years following the date of termination
of Employee's employment, the Employee shall not directly or indirectly:
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(a) Contact, solicit, advise or consult, any Customer (as
hereinafter defined) with which Employee has had direct contact during
the Term of, and arising from, his employment by the Company, for the
purpose of causing such Customer to purchase, or otherwise obtain
products or services which are similar to or in any way compete with the
products or services sold or provided by the Company, or
(b) Induce, or attempt to induce, any Customer with which
Employee has had direct contact during the term of, and arising from,
his employment by the Company, to cancel, diminish, decrease or curtail
any business relationship, contractual or otherwise, with the Company,
or
(c) Contact, solicit, induce or attempt to induce or influence
any employee, independent contractor or agent of any Customer or Company
to terminate his or her employment, engagement or contractual
relationship with such Customer or Company.
10.3 COVENANTS AGAINST COMPETITION. During the period of
Employee's employment, and for a period of one (1) year following the date of
Employee's voluntary termination of employment, the Employee shall not within
the Restricted Area (as hereinafter defined), directly or indirectly:
(a) Assist or have an interest (whether or not such interest is
active), whether as partner, investor, stockholder, officer, director or
as any type of principal whatever, in any person, firm, partnership,
association, corporation or business organization, entity or enterprise
that is or is about to become directly or indirectly engaged in, any
business or activity (whether such enterprise is in operation or in the
planning or development stage) that competes in any manner with the
business conducted by Company.
(b) Enter into the employment of or act as an independent
contractor or agent for or advisor or consultant to, any person, firm,
partnership, association, corporation or business organization, entity
or enterprise that is or is about to become directly or indirectly
engaged in, any business or activity (whether such enterprise is in
operation or in the planning or development stage) that competes in any
manner with the business conducted by Company.
10.4 DEFINITIONS.
(a) "Customer" shall mean any individual, corporation,
partnership, joint venture or other entity, or successors thereof, which
has either (i) purchased or contracted for services or products by or
through the Company at any time within one (1) year prior to the
termination of Employee's employment with the Company, or (ii) has been
directly solicited by the Company within six (6) months prior to the
termination of Employee's employment with the Company, regardless of
whether the Employee shall have direct contact with such individual,
corporation, partnership, joint venture or entity.
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(b) "Restricted Area" shall mean collectively Canada, the United
States of America and Europe.
(c) "Restrictions" shall mean the terms and covenants of
Sections 10.1, 10.2 and 10.3, collectively.
10.5 ENFORCEABILITY OF AGREEMENT.
(a) Reasonableness of Restrictions. Employee has carefully read
and considered the Restrictions and, having done so, agrees that the
Restrictions (including, but not limited to, the time period of
restriction and the geographical areas of restriction set forth herein)
are fair and reasonable and are reasonably required for the protection
of the interests of Company, its owners, officers, directors and other
employees. Employee has had the opportunity to consult with an attorney
prior to the execution of this Agreement, and freely executes this
Agreement either (i) following such consultation and with the advice of
his attorney, or (ii) after freely waiving such right to consult with an
attorney prior to the execution of this Agreement.
(b) Severability. In the event that, notwithstanding the
foregoing, any part of the Restrictions shall be held to be invalid or
unenforceable, the remaining parts thereof shall nevertheless continue
to be valid and enforceable as though the invalid or unenforceable parts
had not been included therein. Notwithstanding the foregoing, it is the
intent and agreement of Company and Employee that the Restrictions shall
be given the maximum force, effect and application permissible under
law.
(c) Time Period. In the event that a Court of competent
jurisdiction shall determine by final judgment that the scope or time
period of any of the Restrictions is too broad to be capable of
enforcement, such court is authorized to modify such covenants and to
enforce them to the full scope and extent and for the full time period
that the Court deems just and equitable.
(d) Passive Interest. The Restrictions shall not be construed to
limit in any manner Employee's right to maintain a passive ownership
interest in any entity, the securities of which are traded on a national
exchange, which may compete with Company, so long as Employee shall not
have the right or power to elect a member of the Board of Directors of
such entity or to otherwise control the actions of such entity.
11. REMEDIES.
11.1 REMEDIES CUMULATIVE. Nothing herein contained is intended
to waive or diminish any rights the Company or Employee may have at law or in
equity at any time to protect and defend its legitimate property interests
including its business relationship with third parties, the foregoing provisions
being intended to be in addition to and not in derogation or limitation of' any
other rights the Company or Employee may have at law or in equity.
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11.2 INJUNCTIVE RELIEF. Employee hereby acknowledges and agrees
that Company would be irreparably injured, the value of the business of Company
would be irreparably damaged and Company could not adequately be compensated by
monetary damages, if Employee were to violate the Restrictions. Employee
covenants and agrees that, if Employee shall violate any of the Restrictions,
Company specifically shall be entitled to injunctive and other equitable relief
to enjoin Employee's violations of such Restrictions. The prevailing party in
any such injunctive action shall be entitled to reimbursement from the other
party for all actual attorney fees expended in such action.
11.3 NOTICE OF VIOLATION. In the event Company believes that
Employee is violating any of the Restrictions, Company shall so notify Employee
in writing, which notice shall describe with as much specificity as possible,
the nature of the alleged violation. Provided that Employee is in violation of
the Restrictions, if the Employee does not, within fourteen (14) days following
receipt of said notice, cease the conduct, terminate the relationship or
otherwise cure such violation, the Company shall have no further obligation to
make payments to Employee pursuant to the terms of this Agreement following the
date of receipt of such notice.
11.4 ACCOUNTING FOR PROFITS. Employee hereby covenants and
agrees that, if Employee shall violate any of the Restrictions, Company shall be
entitled to an accounting and repayment of all profits, compensation,
commissions, remunerations or benefits which Employee directly or indirectly has
realized and/or may realize as a result of, growing out of or in connection with
any such violation.
12. EMPLOYEE FOR HIRE. In addition to Employee's services, the Company
shall own forever and throughout the world (exclusively during the current and
renewed or extended term of copyright anywhere in the world and thereafter,
non-exclusively) all rights of any kind or nature now or hereafter known in and
to all of the products of Employee's services performed under this Agreement in
any capacity and any and all parts thereof, including, without limitation,
copyright, patent and all other property or proprietary rights in or to any
ideas. concepts, designs, drawings, plans, prototypes or any other similar
creative works and to the product of any or all of such services under this
Agreement (collectively, "Inventions"). Employee hereby acknowledges and agrees
that for copyright purposes, Employee is performing services as the Company's
employee-for-hire; provided, however, that for purposes of this Agreement,
"Inventions" shall not include those that do not relate to the Company's current
business or research and development and were developed without use of any
Company trade secret information or Company facilities or equipment. Without
limiting the generality of the previous two sentences, Employee acknowledges and
agrees that all memoranda, notes, records and other documents made or compiled
by Employee or made available to Employee during the Term of this Agreement
concerning the Company business shall be the Company's property and shall be
delivered by Employee to the Company upon termination of this Agreement or at
any other time at the Company's request. In addition, the Employee hereby agrees
to assign to Company in writing (and take any and all other actions as shall be
reasonably requested by Company in order to carry out the intent of this
Section) any and all rights, title or interest of Employee in any such
copyrights, patents, property or proprietary rights relating to such Inventions.
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13. STOCK OPTIONS. Employee is hereby granted a non-qualified stock
option (the "Option") to acquire 500,000 shares of capital common stock of the
Company ("Shares") upon the terms and conditions set forth below. In the event
that Employee enters into a subsequent employment agreement with the Company,
the provisions of this Section 13 shall survive and be incorporated in such new
employment agreement.
13.1 VESTING. Except as provided below, so long as Employee
shall remain employed by the Company, the Option to acquire 125,000 Shares shall
vest on each of the next following four consecutive annual anniversary dates of
the beginning of Employee's employment with the Company (each of such four dates
being an "Anniversary Date"). The Shares with respect to which the Option has
vested shall be "Vested Shares", and the date upon which such Shares become
Vested Shares shall be the "Vesting Date".
(a) In the event the Company closes on the sale of Shares in a
public offering pursuant to an effective registration statement under
the Securities Act of 1933, as amended (a "Public Offering") resulting
in at least $20,000,000 of gross proceeds to the Company, 75,000 Shares
will become Vested Shares on the closing of such Public Offering. In the
event of such Public Offering and vesting of 75,000 Shares, an equal
amount of the then remaining unvested Shares shall become Vested Shares
on each of the remaining Anniversary Dates following the Public
Offering.
(b) The foregoing notwithstanding, any then remaining unvested
Shares shall immediately become Vested Shares, (i) in the event both
Xxxxx Xxx and Xxxxxxx Xxxxxxx terminate employment with the Company for
reasons other than death or disability, or (ii) in the event Employee
remains employed by the Company for the shorter of (A) six (6) months
following the occurrence of a Change in Control, or (B) upon the closing
or occurrence of an event described in Section 9.3(a), (b) or (c), or
(iii) upon the occurrence of events resulting from a Change in Control
entitling Employee to payment under Section 9.2.
13.2 EXERCISE OF OPTION. Employee may exercise its Option to
acquire any or all Vested Shares upon written notice to the Company and payment
of the Option Price in cash for such Vested Shares prior to the expiration of
the Option.
13.3 OPTION PERIOD. The Option to acquire Vested Shares shall
expire five (5) years following the Vesting Date with respect to such vested
Shares ("Standard Option Period"), unless earlier terminated in accordance with
this Agreement.
(a) In the event Employee's employment is terminated, other than
for Cause, the Option to acquire Vested Shares as of the date of such
termination, shall expire on the earlier of (i) expiration of the
Standard Option Period, or (ii) 120 days following the date of
termination of employment.
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(b) In the event Employee's employment is terminated for Cause,
the Option to acquire Vested Shares shall be deemed to expire as of the
date of termination of employment.
13.4 OPTION PRICE. The price at which the Employee may exercise
the Option (the "Option Price") shall be $1.00/Share.
14. MISCELLANEOUS.
14.1 NOTICES. Any notices pertaining to this Agreement shall be
addressed to the parties at their addresses stated on the first page hereof. All
notices shall be in writing and shall be deemed duly given if personally
delivered or sent by registered or certified mail, overnight or express mail. If
sent by registered or certified mail, notice shall be deemed to have been
received and effective three days after mailing; if by overnight or express
mail, notice shall be deemed received the next business day after being sent.
Any party may change its address for notice hereunder by giving notice of such
change in the manner provided herein.
14.2 ENTIRE AGREEMENT. This Agreement contains the entire
agreement of the parties respecting the subject matter contained herein. No
modification of any provision hereof shall be effective except by a written
agreement signed by all of the parties hereto.
14.3 ARBITRATION.
(a) It is understood and agreed between the parties hereto that,
except with respect to claims for workers' compensation or unemployment
compensation benefits, any and all claims, grievances, demands,
controversies, causes of action or disputes of any nature whatsoever
(including but not limited to tort and contract claims, and claims upon
any law, statute, order, or regulation) (hereinafter "Claims"), arising
out of, in connection with, or in relation to (i) this Agreement, (ii)
questions of arbitrability under this Agreement, or (iii) any
relationship between Employee and the Company before, at the time of
entering, during the term of, upon or after expiration or termination of
this Agreement, shall be resolved by final, binding, nonjudicial
arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association ("AAA"), which rules are incorporated
herein by reference. Such dispute resolution process shall be
confidential and shall be conducted in accordance with the Kansas Rules
of Evidence.
(b) Notwithstanding any contrary provision that may be contained
in the applicable AAA rules, the parties hereby agree that discovery
shall be permitted in connection with any arbitration pursuant to this
Agreement, in accordance with the provisions of the Kansas Code of Civil
Procedure. Neither party nor the arbitrator shall disclose the
existence, content, or results of any arbitration hereunder without the
prior written consent of all parties. Except as provided herein, the
Federal Arbitration Act shall govern the interpretation, enforcement and
all proceedings pursuant to this Section 14.3. The Arbitrator shall
apply the substantive law (and the law of remedies, if applicable) of
the State of Kansas, or federal law, or both, as applicable. The
arbitrator is without jurisdiction to
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apply any different substantive law. The arbitrator shall have the
authority to entertain a motion to dismiss and/or a motion for summary
judgment by any party and shall apply the standards governing such
motions under Kansas law. The arbitrator shall render an award and a
written, reasoned opinion in support thereof. Such award may include
attorneys' fees and costs to the prevailing party. Judgment upon the
award may be entered in any court having jurisdiction thereof.
(c) Adherence to this dispute resolution process shall not limit
the Company's right to obtain any provisional remedy, including but
without limitation, injunctive or similar relief, from any court of
competent jurisdiction in the event of a breach of Section 10 of this
Agreement. This dispute resolution process shall survive the termination
of Employee's employment.
(d) In the event that any party shall bring an action in
connection with the performance , breach or interpretation hereof, then
the prevailing party in such action as determined by the court or other
body having jurisdiction shall be entitled to recover from the losing
party in such action as determined by the court or either body having
jurisdiction, all reasonable costs and expense of litigation or
arbitration, including reasonable attorney's fees, court costs, costs of
investigation and other costs reasonably related to such proceeding.
(e) By signing this Agreement, both Employee and the Company are
giving up their respective right to a jury trial.
14.4 PERSONAL COMPUTER. During the Term, the Company shall
provide Employee, at Company expense, with a portable personal computer (the
"Laptop") with such capabilities and capacity, and including all necessary
software, as shall be reasonably necessary to discharge Employee's duties under
this Agreement. Upon termination of Employee's employment, the Employee shall
promptly deliver to the Company any and all tangible property of the Company,
including without limitation the Laptop and any software related thereto and the
contents of any files stored therein.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first set forth above.
THE COMPANY:
THE MANAGEMENT NETWORK GROUP, INC.,
a Kansas corporation
By:
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Xxxxxxx X. Xxxxxxx - President
and CEO
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EMPLOYEE:
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XXXXXX XXXXX
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