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Exhibit 10.1
VIASOURCE COMMUNICATIONS, INC.
EMPLOYMENT AGREEMENT
FOR
XXXXXXX X. XXXXXXX
EMPLOYMENT AGREEMENT, dated as of June 28, 1999, by and between
VIASOURCE COMMUNICATIONS, INC., a New Jersey corporation (the "COMPANY") and
XXXXXXX X. XXXXXXX (the "EXECUTIVE").
WHEREAS, the Company desires to employ Executive to provide personal
services to the Company, and wishes to provide Executive with certain
compensation and benefits in return for his services; and
WHEREAS, Executive wishes to be employed by the Company and provide
personal services to the Company in return for certain compensation and
benefits;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, it is hereby agreed by and between the parties hereto as
follows:
1. EMPLOYMENT BY THE COMPANY.
1.1 TERM; POSITION. Subject to earlier termination as set forth in
Section 5 below, for a period of three (3) year(s) (the "AGREEMENT TERM"), the
Company agrees to employ Executive in the position of Executive Vice President
and Chief Financial Officer and Executive hereby accepts such employment
effective as of the date first written above. During the Agreement Term,
Executive will devote his best efforts and substantially all of his business
time and attention (except for vacation periods and reasonable periods of
illness or other incapacities permitted by the Company's general employment
policies) to the business of the Company.
1.2 DUTIES. Executive shall serve in an executive capacity and
shall perform such duties as are customarily associated with his then existing
title(s), consistent with the Bylaws of the Company and as required by the
Company's Board of Directors (the "BOARD") or the Executive's supervisor.
Executive agrees to provide his services in substantial conformance with all
laws and regulations.
1.3 EMPLOYMENT RELATIONSHIP. The employment relationship between
the parties shall also be governed by the general employment policies and
practices of the Company, including those relating to protection of confidential
information and assignment of inventions, except that when the terms of this
Agreement differ from or are in conflict with the Company's general employment
policies or practices, this Agreement shall control.
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2. COMPENSATION.
2.1 SALARY. Executive shall receive for services to be rendered
hereunder an annualized base salary of $200,000, payable on a weekly basis,
which may be reviewed at the discretion of the Compensation Committee of the
Board.
2.2 DISCRETIONARY BONUS. Executive will be eligible for a
discretionary bonus, in an amount to be determined solely by the Compensation
Committee in its discretion, subject to the terms and conditions outlined in a
Company bonus plan, which may be established and in effect from time to time.
2.3 INCENTIVE COMPENSATION. In addition to any other compensation
or benefits set forth in this Agreement, Executive shall be entitled to
participate during the Employment Term in the Company's Stock Incentive Plan in
such amounts and on such terms as may be determined by the Company's
Compensation Committee and approved by the Board, and in any incentive plans,
programs or arrangements generally applicable to the Company's executives and
employees on such terms as are determined by the Board. Without limiting the
generality of the foregoing, the Company agrees to grant to Executive options to
purchase 150,000 shares of the Company's Common Stock, no par value. The options
shall vest one-third(1/3) on the anniversary of this agreement and the balance
shall vest in equal amounts on the second and third anniversary of this
agreement. The options shall be exercisable at an exercise price of $1.00 per
share for a period of ten years from the date of grant. The options shall have
terms and provisions customary in qualified options of similar purpose granted
by the Company.
2.4 STANDARD COMPANY BENEFITS. Executive shall be entitled to all
rights and benefits for which he is eligible under the terms and conditions of
the standard Company benefits and compensation practices which may be in effect
from time to time and provided by the Company to its employees in comparable
positions (the "COMPANY BENEFITS").
2.5 BUSINESS EXPENSES AND PERQUISITES. Reasonable travel, entertainment
and other business expenses incurred by Executive in the performance of his
duties hereunder shall be reimbursed by the Company in accordance with Company
policies; provided that Executive provides the Company with reasonable
documentation of such expenses satisfactory to the Company.
3. PROPRIETARY INFORMATION OBLIGATIONS. Executive will not at any time
(whether during or after his employment with the Company) disclose or use for
his own benefit or purposes or the benefit or purposes of any other person,
firm, company, joint venture, association, corporation or other business
organization, entity or enterprise other than the Company and any of its
subsidiaries or affiliates, any trade secrets, information, data, or other
confidential information relating to customers, development programs, costs,
marketing, trading, investment, sales activities, promotion, credit and
financial data, manufacturing processes, financing methods, plans, or the
business and affairs of the Company generally, or of any subsidiary or affiliate
of the Company; provided that the foregoing shall not apply to information which
is not unique to the Company or which is generally known to the industry or the
public other than as a result of Executive's breach of this covenant. Executive
agrees that upon termination of his employment with the Company for any reason,
he will return to the Company
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immediately all memoranda, books, papers, plans, information, letters and other
data, and all copies thereof or therefrom, in any way relating to the business
of the Company and its affiliates, except that he may retain personal notes,
notebooks and diaries. Executive further agrees that he will not retain or use
for his account at any time any trade names, trademark or other proprietary
business designation or intellectual property used or owned in connection with
the business of the Company or its affiliates. Notwithstanding the foregoing,
the Executive shall be permitted to disclose confidential information to the
extent required by law or judicial order.
4. OUTSIDE ACTIVITIES. Except with the prior written consent of the
Company's Board, Executive will not, during the Agreement Term, undertake or
engage in any other employment, occupation or business enterprise, other than
those in which Executive is a passive investor. Executive may engage in civic
and not-for-profit activities so long as such activities do not materially
interfere with the performance of his duties hereunder.
5. TERMINATION OF EMPLOYMENT.
(A) VOLUNTARY TERMINATION. During the Agreement Term, the
Executive may voluntarily terminate his employment relationship at any
time for any reason upon thirty (30) days' prior written notice to the
Company. Upon such voluntary termination, the Executive shall not be
entitled to any further compensation or rights under this Agreement
other than (i) accrued but unpaid compensation rights as of the date of
termination, or (ii) any rights or benefits accrued to the date of
termination under the terms of any Company Benefits the Executive
participated in prior to such termination (together, the "ACCRUED
RIGHTS").
(B) TERMINATION FOR CAUSE. During the Agreement Term, the
Executive's employment may be terminated by the Company for Cause. Such
termination shall be effective on the date of Executive's receipt of
notice in the case of clauses (i) through (v) of the definition of
Cause and, with respect to clauses (vi) and (vii) of the definition of
Cause, shall be effective on the date of the expiration of the cure
period if Executive fails to cure the breach within the cure period.
Upon such termination for Cause, the Executive shall not be entitled to
any further compensation or rights under this Agreement other than his
Accrued Rights.
For purposes of this Agreement, "CAUSE" shall mean misconduct,
including: (i) conviction of any felony or any crime involving moral
turpitude or dishonesty; (ii) participation in a fraud or act of
dishonesty against the Company or any of its subsidiaries or affiliates
or the willful fabrication of records of the Company or any of its
subsidiaries or affiliates; (iii) material breach of the Company's
policies after being provided with notice of such failure and an
opportunity to cure within seven (7) days of receipt of such notice;
(iv) any other act or omission or series of acts or omissions which are
injurious to the financial condition or business reputation of the
Company or any of its subsidiaries or affiliates; (v) material breach
of Sections 3, 6 or 7 of this Agreement; (vi) a failure or refusal in a
material respect of Executive to follow the reasonable policies or
directions of the Company as specified by the Board or the Executive's
supervisor after being provided with notice of such failure and an
opportunity to cure within seven (7) days of receipt of such notice; or
(vii) failure to carry out the duties of the Executive's position or
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alcoholism or other form of substance abuse, in each case after being
provided with notice of such failure and an opportunity to cure within
seven (7) days of receipt of such notice. Disability shall not
constitute "Cause."
(C) TERMINATION WITHOUT CAUSE. During the Agreement Term,
the Company may terminate the employment of the Executive at any time
for any reason other than Cause upon thirty (30) days' prior written
notice to the Executive. Upon such termination without Cause, the
Executive will receive: (i) his Accrued Rights, (ii) an amount equal to
six (6) months of base salary, less payroll deductions and required
withholdings, payable in equal semi-monthly installments, (iii) a lump
sum payment of that portion of the bonus Executive is entitled to for
the calendar year in which the termination occurs pro-rated based upon
the number of full months Executive was employed in such year, and (iv)
continuation of all Company Benefits for a period of six (6) months.
(D) DISABILITY. During the Agreement Term, the Company
may terminate the employment of the Executive on account of Disability
upon thirty (30) days' prior written notice to the Executive. Upon such
termination on account of Disability, the Executive will receive: (i)
his Accrued Rights, (ii) a lump sum payment equal to one (1) year of
base salary, less payroll deductions and required withholdings, (iii) a
lump sum payment of that portion of the bonus Executive is entitled to
for the calendar year pro-rated based upon the number of full months
Executive was employed in such year, and (iv) continuation of all
Company Benefits for a period of four (4) months.
For purposes of this Agreement, "DISABILITY" shall mean a
disability which prevents Executive from substantially performing his
duties under this Agreement for a period of at least 90 consecutive
days or 180 non-consecutive days within any 365-day period. Any
question as to the existence of the Disability of Executive as to which
Executive and the Company cannot agree shall be determined in writing
by a qualified independent physician mutually acceptable to Executive
and the Company. If Executive and the Company cannot agree as to a
qualified independent physician, each shall appoint such a physician
and those two physicians shall select a third who shall make such
determination in writing. The determination of Disability made in
writing to the Company and Executive shall be final and conclusive for
all purposes of this Agreement.
(E) DEATH. In the event of the death of the Executive
during the Agreement Term, this Agreement shall automatically terminate
(subject to Section 8.9), such termination to be effective on the date
of Executive's death, and the Company shall pay to Executive or his
heirs, executors or administrators, his Accrued Rights, a portion of a
discretionary bonus, if any, which may otherwise have been paid to
Executive pursuant to Section 2.2 hereof with respect to the annual
period in which the death occurs pro-rated based upon the number of
full months Executive was employed in such annual period prior to his
death.
6. CONTINUATION OF EMPLOYMENT/RESTRICTIVE COVENANT. Executive acknowledges
and recognizes the highly competitive nature of the businesses of the Company
and its affiliates and accordingly agrees that during the term of Executive's
employment and for a period of
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twenty-four (24) months immediately following the date that Executive ceases
employment with the Company for any reason, Executive shall not, in any
geographic area where the businesses of the Company and its affiliates are
conducted, without first obtaining the prior written approval of the Company,
(i) directly or indirectly engage or prepare to engage, in any activities in
competition with or contrary to the best interests of the Company or its
subsidiaries or affiliates, (ii) deal, directly or indirectly, in a competitive
manner with any customers or clients of any of the businesses of the Company and
its subsidiaries and affiliates, or (iii) accept employment or establish a
business or consulting arrangement relationship with a business that directly or
indirectly competes with the Company or its subsidiaries or affiliates, as
determined by the Board.
7. NONSOLICITATION. While employed by the Company, and for twenty-four
(24) months immediately following the Executive's termination of employment for
any reason, Executive agrees not to interfere with the business of the Company
by soliciting, attempting to solicit, inducing, or otherwise causing any
employee, consultant or independent contractor of the Company or its
subsidiaries or affiliates to terminate his or her employment or other service
with the Company or its subsidiaries or affiliates in order to become an
employee, consultant or independent contractor to or for any other entity or
person.
8. GENERAL PROVISIONS.
8.1 NOTICES. Any notices provided hereunder must be in writing and
shall be deemed effective upon the earlier of personal delivery (including
personal delivery by telex) or the third day after mailing by first class mail,
to the Company at its primary office location and to Executive at his address as
listed on the Company's then current payroll records.
8.2 SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provisions had never been contained herein.
8.3 WAIVER. If either party should waive any breach of any
provisions of this Agreement, he or it shall not thereby be deemed to have
waived any preceding or succeeding breach of the same or any other provision of
this Agreement. No waiver of any provision hereof shall be effective unless in
writing.
8.4 COMPLETE AGREEMENT; AMENDMENT. This Agreement hereto,
constitute the entire agreement between Executive and the Company and it is the
complete, final, and exclusive embodiment of their agreement with regard to this
subject matter. It is entered into without reliance on any promise or
representation other than those expressly contained herein, and it cannot be
modified or amended except in a writing signed by an officer of the Company.
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8.5 COUNTERPARTS. This Agreement may be executed in separate
counterparts, any one of which need not contain signatures of more than one
party, but all of which taken together will constitute one and the same
Agreement.
8.6 HEADINGS. The headings of the sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
8.7 SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive and the Company, and
their respective successors, assigns, heirs, executors and administrators,
except that Executive may not assign any of his duties hereunder and he may not
assign any of his rights hereunder without the written consent of the Company,
which shall not be withheld unreasonably.
8.8 CHOICE OF LAW. All questions concerning the construction,
validity and interpretation of this Agreement will be governed by the law of the
State of New York.
8.9 SURVIVAL. The following provisions of this Agreement shall
survive the termination of Executive's employment and the assignment of this
Agreement by the Company to any successor in interest or other assignee: Section
3; Section 6; Section 7; and Section 8.
8.10 RELIEF. Executive acknowledges that the restrictions set forth
in Sections 3, 4, 6 and 7 above are necessary to protect the Company's
confidential proprietary information and other legitimate business interests and
are reasonable in all respects, including duration, territory and scope of
activity restricted. Executive further acknowledges that the provisions of
Sections 3, 4, 6 and 7 hereof are essential to the Company, that the Company
would not enter into this Agreement if it did not include these provisions and
that damages sustained by the Company as a result of a breach of these
provisions cannot be adequately remedied by damages, and Executive agrees that
the Company, in addition to any other remedy it may have under this Agreement or
at law, shall be entitled to injunctive and other equitable relief to prevent or
curtail any breach of Sections 3, 4, 6 and 7 of this Agreement. Executive agrees
that the existence of any claim or cause of action by Executive against the
Company or its affiliates, whether predicated on this Agreement or otherwise,
shall not constitute a defense to the enforcement by the Company of any of the
provisions of Sections 3, 4, 6 and 7 hereof. Executive shall have no right to
enforce any of his rights under this Agreement by seeking or obtaining
injunctive or other equitable relief and acknowledges that the damages described
herein are an adequate remedy for any breach by the Company of this Agreement.
In the event of a breach of the covenants and assurances of Sections 3,
6, or 7 by the Executive or in the event the Executive voluntarily terminates
his employment pursuant to Section 5(a) or has his employment terminated
pursuant to Section 5(b) hereof, any options to purchase shares of the Company
stock, whether vested or otherwise, shall terminate immediately and shall be of
no further force or effect and any severance or any other payment due to the
Executive under this Agreement shall be immediately forfeited except as provided
for in Sections 5(a) and 5(b).
8.11 WITHHOLDING TAXES. The Company may withhold from any amounts
payable under this Agreement such Federal, state and local taxes as may be
required to be withheld pursuant to any applicable law or regulation.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
VIASOURCE COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, President
EXECUTIVE: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
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