EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") dated as of the 1st day of April , 2005
(the "Effective Date") is made and entered into by and between enherent Corp.,
and its affiliates, associated companies, subsidiaries, parent, divisions or
related entities (collectively "Company"), a Delaware corporation, having a
principal place of business at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
and Xxxx X. Xxxxxxx ("Employee"), an individual residing at 000 Xxxx Xxxxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx, 00000.
1. TITLE. The Company hereby employs Employee, as general counsel ("GC").
Employee will be based in the metropolitan New York/New Jersey area. The
Company will provide Employee with an office and appropriate computer and
communications at its offices in that area and Employee hereby accepts
employment in such capacity and subject to the conditions set forth in
this Agreement.
2. TERM. The initial term of this Agreement is for one (1) year, commencing
on the Effective Date reflected above (the "Initial Term"). This Agreement
shall automatically renew for subsequent one-year terms, unless and until
terminated by either party in accordance with the provisions of Section 8.
The entire period this Agreement remains in effect is referred to as the
"Employment Period".
It is expressly understood and agreed that any changes in the Employee's
compensation, duties, location or title will not invalidate this
Agreement. At the option of the parties, such changes may be incorporated
into an "Addendum" to this Agreement. Failure to so incorporate such
changes will not affect the validity of, or the enforceability of, the
other terms herein.
3. COMPENSATION. The Company shall pay to Employee the following
compensation, subject to applicable withholdings, for all the services to
be rendered by Employee in any capacity:
a. BASE SALARY. An initial gross salary at the rate of $175,000 per
year (annual base salary) payable on a semi-monthly basis or in
accordance with Company's then current policies and procedures, less
all applicable and required federal, state, local and authorized
deductions.
b. PAID TIME OFF. Employee shall be entitled to receive fifteen (15)
days paid vacation each year, and to six (6) personal and sick days.
Otherwise, entitlement to and use of such paid time off shall be in
accordance with the Company's Employee Handbook.
c. INCENTIVE COMPENSATION. In addition to base salary, Employee shall
be eligible for a bonus of up to ten percent (10%) of base salary,
pursuant to the Company's Management Incentive Plan. The accrual and
extent of such bonus, as established at the sole discretion of the
Company, shall be based on personal and Company goals.
d. BENEFITS. Employee shall be eligible for the Company's benefits
during the Employment Period in accordance with the terms of any
employee plans, policies, and
practices of the Company applicable to executive employees
generally, which may include retirement program, 401(k), defined
benefits and cafeteria plans, a group life insurance plan, salary
continuation program for a surviving spouse of key employees,
disability plan for key employees, medical and health plans,
vacation policies and other present or equivalent successor plans
and practices of the Company for which officers, or dependents and
beneficiaries, generally are eligible, and to all payments or other
benefits under any such plan or practice after the period of
employment as a result of participation in such plan or practice
during the Employment Period.
4. JOB DESCRIPTION AND DUTIES. A copy of the GC job description is attached
to this Agreement. Employee shall perform such work as may be required of
Employee by Company in accordance with the job description, as well as the
instructions, directions and control of Company and at such reasonable
time and places as Company may determine. At all times during the
Employment Period, Employee shall strictly adhere to all the rules and
regulations that have been or that may hereafter be established by Company
for the conduct of its employees and further, Employee shall strictly
adhere to all the provisions of the Company's handbook(s).
5. BACKGROUND CHECK. Employee hereby consents to the conducting of a
background check by Company and/or Company's broker, customer and/or
client to the full extent permitted by law. Such a background check may
include, but shall not be limited to, a judgment and public criminal
record check, fingerprinting, and drug and/or alcohol screening. The
Employee agrees not to hold Company and/or its broker(s), customer(s)
and/or client(s) liable for any claims in connection with such checking or
testing or the reporting of the results thereof to Company.
6. BUSINESS ACTIVITY. Employee shall devote full and complete attention and
energies to the business of Company, and shall not during the term of this
Agreement be engaged in any other business activity, whether or not such
business activity is pursued for gain, profit or other pecuniary advantage
and whether or not said other business activity is directly, indirectly or
unrelated to the business activity of Company, without the express written
consent of Company. However, this shall not be construed as preventing
Employee from investing Employee's assets in such form or manner as will
not require any services on Employee's part in the operation of the
affairs of the companies in which such investments are made; provided,
however, that any investment in any non-public companies shall not be in
companies having allied or related business activities to Company.
7. EXPENSES. The Company will reimburse Employee for reasonable and customary
expenses incurred by Employee in the course of this employment provided
that such expenses are reimbursable by Company policy, and further, that
such expenses are authorized by Company and an accounting is made to
Company, in accordance with the procedures of Company.
8. TERMINATION. The Employment Period shall be terminated:
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a. by either party giving written notice of non-renewal of this
Agreement, in accordance with paragraph 19, at least thirty (30)
days prior to the expiration of a yearly term; the Agreement will
terminate as of the term's expiration date; a non-renewal shall not
be deemed termination without cause pursuant to Section 8c below;
b. at the time of the death or retirement of Employee, or the Agreement
may be terminated by Company if Employee shall fail to render the
services provided for hereunder for a continuous period of sixty
(60) days because of Employee's physical or mental disability;
c. by
(i) the Company without Cause; or
(ii) the Employee for Good Reason; "Good Reason" shall mean a
reduction in Employee's compensation or the assignment to the
Employee of any duties inconsistent in any material respect
with the Employee's position (including status, offices,
titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 4 of this
Agreement, or any other action by Employer which results in a
material diminution in such position, authority, duties or
responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith
and which is remedied by Employer promptly after receipt of
notice thereof given by the Employee; or
(iii) the Employee in the event of a Change in Control of the
Company that occurs more than sixty days prior to the
expiration of a yearly term or within six months after the
Change in Control, and that results in a reduction in
compensation or a material change in duties, title, or
transfer to a location greater than fifty miles from the
Employee's residence, during a yearly term of this Agreement;
"Change of Control" shall mean a direct or indirect change in
the ownership or control of ENHERENT by purchase, merger,
consolidation, reorganization, lease, exchange, transfer or
sale of all the assets or outstanding stock of the ENHERENT
(in one transaction or a series of transactions) or taking
ENHERENT private or any other business transaction involving
ENHERENT or any combination of the foregoing transactions, any
of which has the effect of causing a Change of Control within
the meaning of the Securities Exchange Act of 1934;
in which case Employee shall be entitled to receive as severance an
amount equal to six (6) months of Employee's then current base
salary (less all applicable and required federal, state, local and
authorized deductions), to be paid pursuant to Company's regular
payroll schedule; or
d. by the Company with Cause. For purposes of this Section 8, "Cause"
shall mean: (a) Employee's embezzlement, willful breach of fiduciary
duty or fraud with regard to Company or any of Company's assets or
businesses, (b) Employee's conviction of, or pleading of guilty or
nolo contendere, with regard to a felony (other than a traffic
violation) or any other crime involving moral turpitude
or involving activity related to the affairs of Company, or (c) any
other breach by Employee of a material provision of the Employee
Handbook or of this Agreement that, if capable of being cured,
remains
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uncured for thirty (30) days after written notice thereof is given
to Employee. If the breach is not curable, Company may terminate
without notice. In the event Company terminates the Employment
Period for Cause, Company's sole obligation is to pay Employee for
that period actually worked by Employee, subject to any direct
financial loss to the Company resulting from Employee's breach.
9. PROPRIETARY INFORMATION. Employee recognizes and acknowledges that
Company's trade secrets, customer/broker/client lists, strategic plans,
marketing plans, private processes, prospective customer/broker/client
lists, and staff and prospective staff lists are deemed to be the private
and proprietary information of Company and are available, special, unique
and significant proprietary assets of Company's business. Employee will
not either during or subsequent to the Employment Period, in whole or in
part, disclose such trade secrets, customer/broker/client lists, strategic
plans, marketing plans, staff or prospective staff lists, prospective
customer/broker/client lists or private processes to any person, firm,
corporation, association or other entity for any reason or purpose
whatsoever. In addition, Employee shall not make use of any of the above
for Employee's own purposes or for the benefit of any person, firm,
corporation, or other entity other than Company under any circumstances
during the Employment Period or subsequent to employment.
10. NON-COMPETITION/NON-SOLICITATION. Employee agrees that during the
Employment Period and for a period of one (1) year thereafter
("Restrictive Period"), Employee will not directly or indirectly, or in
any capacity, individually or in any corporation, firm, association or
other business entity, compete or attempt to compete with Company, any
parent, subsidiary, or affiliate of Company, or any corporation merged
into, or merged or consolidated with Company (a) by soliciting business
from any customer, broker and/or client of Company with which Employee was
involved (directly or indirectly) during the Employment Period, if such
solicited business competes with the business of Company, or (b) inducing
any personnel of Company to leave the service of Company, or by employing
or contracting with any such personnel. The provisions of this Section 10
shall be construed as an Agreement independent of any other provision
contained herein and shall be enforceable in both Law and Equity,
including by temporary or permanent Restraining Orders, notwithstanding
the existence of any claim or cause of action by Employee against Company,
whether predicated on this Agreement or otherwise. Notwithstanding the
foregoing, if Company terminates Employee's employment for convenience
hereunder, Company agrees that Employee may upon the termination of the
Employment Period, perform services within the information technology
industry, provided however that Employee does not compete with Company,
(a) by soliciting directly or indirectly any Company employees, and/or (b)
by soliciting directly or indirectly any new business from Company's then
existing customers or Prospective Customers, during the Restrictive
Period. "Prospective Customer" means any entity that the Company is, or
has been within the twelve (12) months prior to Employee's termination, in
the process of soliciting, negotiating with, or otherwise communicating
with, for the purpose of providing goods or services.
11. ASSIGNMENT OF RIGHTS TO COMPANY. Employee hereby agrees to assign all
rights, title, and interest in all writings, products, inventions,
discoveries, developments,
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improvements, ideas, technical notes, programs, specifications, computer
or other apparatus programs and related documentation, and other works of
authorship, tangible and intangible property, whether or not patentable,
copyrightable or subject to other forms of protection, made, created,
developed, discovered, written or conceived by Employee, solely or jointly
with another, in whole or in part, for either Company and/or Company's
customer(s), broker(s) and/or client(s) during the Employment Period,
whether during or outside of regular working hours, and to promptly
deliver to Company all such tangible properties and work products at the
request of Company. Employee shall not be entitled to any compensation in
addition to the amount set forth in Section 3 of this Agreement by reason
of said assignment.
12. COMPANY PROPERTY. Employee shall, upon termination of employment with
Company, immediately return to Company all equipment and supplies of
Company and all books, records, lists and other written, typed or printed
materials, whether furnished by Company or prepared by Employee, which
contain any information relating to Company's business or any of its
customers, brokers and/or clients, and Employee agrees that Employee will
neither make nor retain copies of such materials after termination of
employment.
13. OFFSET. Employee hereby authorizes Company, at any time, to offset and
deduct against any and all monies due to Employee by Company, whether for
salary or other remuneration to the full extent allowed by law, any and
all monies owed by Employee to Company for any reason whatsoever,
including, but not limited to the correction of payroll errors and/or
advanced vacation time.
14. NON-WAIVER. The failure of either party to insist upon the performance of
any of the provisions of this agreement, or the waiver of any breach,
shall not be construed as or constitute a waiver of the rights granted in
this Agreement with respect to any subsequent forbearance or breach.
15. GOVERNING LAW AND JURISDICTION. The sections of the Handbook entitled "ADR
Clause" and "Applicable Law, Jurisdiction, and Venue" are incorporated
into this Agreement. The Agreement shall be construed under and be
governed in all respects by the internal laws, and not the laws pertaining
to choice or conflicts of laws, of the State of New York.
16. SUCCESSORS AND INTEGRATION. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and any successor to the business of
Company, but neither the Agreement nor any rights hereunder may be
assigned, pledged or encumbered by Employee without the written consent of
Company.
This Agreement supersedes any prior agreements made between the parties,
whether oral or written, and constitutes that final and entire agreement
and understanding of the parties, all prior representations and agreements
having been merged into this Agreement, and this Agreement shall amend,
restate and replace all prior employment agreements entered into between
Company and Employee. No waiver or modification of this Agreement or of
any covenant, condition, or limitation shall be valid unless in writing
and duly executed by the
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party to be charged therewith and no evidence of any waiver or
modification shall be offered or received in evidence in any proceeding,
arbitration or litigation between the parties arising out of or affecting
this Agreement, or the rights or obligations of the parties, unless such
waiver or modification is in writing, and duly executed, and the parties
agree that the provisions of this Section 16 may not be waived except as
set forth in this Agreement.
17. SEVERABILITY. All agreements and covenants contained in this Agreement are
severable, and in the event any of them shall be held to be invalid by any
competent court, this Agreement shall be interpreted as if such invalid
agreements or covenants were not contained in this Agreement.
18. AUTHORITY OF EMPLOYEE. Employee hereby represents and warrants that the
execution of this Agreement by Employee and the performance of Employee's
duties and obligations in this Agreement will not breach or be in conflict
with any other agreement to which Employee is a party or by which Employee
is bound, and that Employee is not now subject to any covenant against
competition or similar covenant which would affect the performance of
Employee's duties in this Agreement except for any obligations that
Employee discloses to Company upon signing this Agreement. Employee hereby
agrees to indemnify Company for all claims arising out or related to
Employee's breach of this Section 18.
19. WRITTEN COMMUNICATIONS. This Agreement may not be changed, modified or
terminated orally. Any offer, notice, or request or other communication
hereunder shall be in writing and shall be deemed to have been duly
delivered if hand or mailed by registered or certified mail, return
receipt requested, addressed to the respective address of each party, or
to such other address as each party may designate by notice:
If to Company: enherent Corp.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx, Chief Executive Officer
If to the Employee: Xxxx X. Xxxxxxx
000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the Effective Date.
COMPANY EMPLOYEE
By /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxx X. Xxxxxxx
------------------------- -----------------------------
Xxxxxx Xxxxxxxx XXXX X. XXXXXXX
President and CEO
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