Exhibit 10.3
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 1st day of January, 1999, by and between WILTEK,
INC., a Connecticut corporation, with its principal offices located at 000
Xxxxxxxx Xxxxxx, Xxxxxxx XX 00000 (the "Company") and Xxxxx X. Xxxxx-Xxxxxx, an
individual, residing at 00 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000 (the
"Employee").
W I T N E S S E T H:
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WHEREAS, the Company desires that the Employee shall be employed by the
Company, and the Employee is desirous of such employment, upon the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, the parties hereto agree as follows:
1. Defining Terms. As used in this Agreement, the following terms
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shall have the following meanings:
(a) "Company" shall mean and include Wiltek, Inc., and its
parents, subsidiaries and affiliates and the respective
successors and assigns of any of them, whether now existing
or hereafter arising: provided, however, that references to
the Company in Paragraphs 6, 7 and 9 of this Agreement shall
be limited solely to Wiltek, Inc.
(b) "Customer" shall mean any individual, firm, partnership,
corporation, company, joint venture or governmental or
military unit or any other entity or any parent, subsidiary
or affiliate of any of them which is negotiating or has a
contract with the Company for the purchase or lease of the
Company's equipment, products or services or which has been
solicited by the Company with respect to such purchase or
lease during the Employee's employment with the Company.
(c) "Confidential Information" shall mean information concerning
the Company, its products, processes and services and its
customers, suppliers, contractors, agents, consultants and
employees (herein-after referred to as "Company
Affiliates"), including, but not limited to, information
relating to research, development, inventions, manufacture,
purchasing, accounting, finances, costs, profit margins,
patents, methods, programs, apparatus, engineering,
marketing, merchandising, selling, Customer lists, Customer
requirements and personnel, pricing,
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pricing methods and data processing and any other materials
or information, heretofore or hereafter during the term of
this Agreement, conceived, designed, created, used or
developed by or relating to the Company or any of the
Company Affiliates; provided, however, that Confidential
Information shall not include any information which may be
in the public domain or come into the public domain not as a
result of a breach by the Employee of any of the terms and
provisions of this Agreement.
(d) "Proprietary Property" shall mean discoveries, concepts and
ideas and expressions thereof, whether or not subject to
patent, copyright, trademark, trade name or service xxxx
protection, including, but not limited to, software,
services, processes, methods, formulae, techniques,
apparatus, designs and writings as well as improvements
thereon, revisions thereof and know-how related thereto,
concerning any present or future activities of the Company;
provided, however, that Proprietary Property shall not
include anything which may be in the public domain or come
into the public domain not as a result of a breach by the
Employee of any of the terms and provisions of this
Agreement.
(e) "Competing Product" shall mean any product, process or
service of any person or legal entity other than the
Company, in existence or under development, which, during
the term of this Agreement, competes with or is an
alternative to any present or future product, process, or
service of the Company whether or not actively marketed by
the Company.
(f) "Competing Organization" shall mean any person or legal
entity engaged in, about to engage in or intending to engage
in research on or development, use, production, marketing,
or selling of a Competing Product.
2. Employment. The Company hereby employs the Employee, and the Employee
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hereby accepts such employment, upon the terms and conditions set forth in this
Agreement.
3. Duties. The Employee shall be employed by the Company as Vice
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President and he shall perform such duties and render such services consistent
therewith as may from time to time be required of him by the President of the
Company.
4. Extent of Service. During the term of his employment, the Employee
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agrees that (a) he will serve the Company faithfully, diligently and to the best
of his ability under the direction of the Chairman or the Board of Directors of
the Company; (b) he will devote his best efforts and substantially his entire
working time, attention and energy to the performance of his duties hereunder
and to promoting and furthering the interests of the Company, taking, however,
from time to time, reasonable vacations consistent with the performance of his
obligations hereunder, and (c) he will not, without the prior written approval
of the President of the Company, which approval shall not be unreasonably
withheld, become an officer, director, employee or consultant of, or otherwise
become associated with or engaged in, any business other than that of the
Company, and he will do nothing inconsistent with his duties to the Company.
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5. Terms of Employment. The term of employment of the Employee under
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this Agreement shall be for a period commencing on the date of this Agreement
and terminating twelve (12) months thereafter, unless sooner terminated
pursuant to Paragraph 9 of this Agreement (the "Term"), and for successive one-
year Terms thereafter; provided, however, that with respect to each such
successive Term, the Company and the Employee shall have mutually agreed, in
writing, to basic compensation for such successive Term. If the Company decides
not to renew the Employee's Employment Agreement, then the Employee shall be
entitled to the termination provisions provided for in Clause 9(b) of this
Employment Agreement.
6. Basic Compensation. As basic compensation for the services to be
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rendered hereunder by the Employee for the initial Term, the Company agrees to
pay to the Employee, and the Employee agrees to accept, a minimum salary at the
rate of $120,000 per annum. The salary payable to the Employee hereunder shall
be paid in equal semi-monthly installments during the Term, or in such other
manner as shall be mutually agreed upon by the parties hereto.
7. Other Benefits. The Employee shall be entitled to participate in any
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retirement, disability, profit-sharing, medical or life insurance or other
similar plan or arrangement provided by the Company to its employees, or its
other executive employees. The Employee shall also receive benefits as stated
within the attached "Schedule of Benefits."
8. Disability. If Employee shall be disabled, he shall receive full
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compensation (less any payments received from Worker's Compensation, Wiltek's
disability plans or other governmental payment for such disability) for all
periods of disability even if a period of disability extends beyond the Term;
provided, however, that the maximum number of consecutive days during which
disability occurs and for which Wiltek shall be obligated to pay such
compensation shall be ninety (90) days. Disability means the inability of
Employee to perform his duties hereunder on account of mental or physical
illness or physical incapacity.
9. Termination.
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(a) The employment of the Employee hereunder shall terminate in the
event of the death of the Employee and, at the option of the
Company, upon written notice to the Employee, (i) in the event
that Base Salary payments are terminated due to disability
pursuant to Paragraph 8 of this Agreement, or (ii) in the event
that the Employee shall breach any of the terms and provisions
of this Agreement.
(b) In addition to the provisions of Paragraph 9(a) above, the
Company may also, in its sole discretion, elect to terminate,
without cause, the employment of the Employee hereunder by
thirty (30) days prior written notice to the Employee; provided,
however, that if the Company shall so terminate this Agreement
pursuant to this Paragraph 9(b), the Company shall pay the
Employee guaranteed severance pay in accordance with the next
sentence, continue the benefits set forth in Item 2 of the
attached "Schedule of Benefits" for so long as the severance
payments are being made, will continue the benefit set forth in
Item 1 thereof for the terms thereof and will pay the bonuses
set forth in Item 6 thereof per the terms thereof. During the
six-month period following the receipt of written notice by the
Employee, the Company shall pay the Employee guaranteed
severance pay at a rate equal to the Employee's base
compensation immediately prior to such termination and such
guaranteed severance pay shall be paid to the Employee in the
manner and at the time or times that such base compensation
would otherwise have been paid to the Employee. Following the
six-month guaranteed severance pay period, if the Employee does
not become employed, the Company shall pay the Employee
additional supplemental severance pay in accordance with the
next sentence. During the six-month period following the
conclusion of Company payment to the Employee of six months of
guaranteed severance pay, the Company shall pay the Employee
additional supplemental severance pay at a rate equal to the
Employee's base compensation immediately prior to such
termination and such additional supplemental severance pay shall
be paid to the Employee in the manner and at the time or times
that such base compensation would otherwise have been paid to
the Employee.
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10. Representations and Warranties of the Employee as to Conflicts. The
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Employee hereby represents and warrants to the Company that his
employment by the Company does not and will not violate any provision
of law or fiduciary duty by which he is bound and will not conflict
with or result in a breach of any agreement or instrument to which he
is a party or by which he is bound, and the Employee agrees that he
will indemnify and hold harmless the Company, its directors, officers
and employees against any claims, damages, liabilities and expenses
(including attorneys' fees) which may be incurred, including amounts
paid in settlement, by any of them in connection with any claim based
upon or related to a breach of the Employee's representation and
warranty set forth in this Paragraph. In the event of any claim based
upon or related to a breach of the Employee's representation and
warranty set forth in this Paragraph 10, the Company will give prompt
notice thereof, in writing, to the Employee and the Employee shall
have the right to defend such claim with counsel reasonably
satisfactory to the Company.
11. Proprietary Property. With respect to Proprietary Property made or
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conceived by the Employee in the field of data communications, whether
or not during the hours of his employment or with the use of the
Company's facilities, materials or personnel, either individually or
jointly with others during the period of his employment by the
Company, the Employee shall, without the payment of royalty or any
other considerations to him therefor:
(a) Inform the Company promptly and fully of such
Proprietary Property by a written report satisfactory to
the Company;
(b) Apply, at the Company's requests and expense, for United
States and foreign letters patent, copyright, trademark
or service xxxx, as the case may be, either in the
Employee's name or otherwise as the Company shall
direct;
(c) Assign to the Company all of his right, title and
interest in such Proprietary Property, and to
applications for United States and/or foreign letters
patent, copyright, trademark and service xxxx and to any
letters patent, copyright, trademark and service xxxx
which may be issued upon such Proprietary Property;
(d) Deliver promptly to the Company, without charge to the
Company but at its expense, such written instruments,
and do such other acts, as may be necessary, in the
opinion of the Company, to obtain and maintain United
States and/or foreign letters patent, copyright,
trademark or service xxxx on the Proprietary Property
and to vest the entire right, title and interest thereto
in the Company; and
(e) Grant to the Company, prior to assignment of the
Employee's right title and interest to the Company in
any Proprietary Property as required above, the royalty-
free right to use in its business, and to make, have
made, use and sell products, processes, services,
writings and/or marks based upon or related to
Proprietary Property made or conceived by the Employee.
12. Confidentiality.
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(a) During the Term and at all times thereafter, the Employee
will not use Confidential Information for his own benefit or for the
benefit of any person or legal entity other than the Company nor will he
disclose the same to any other person or legal entity, except as
required to conduct the business of the Company in the ordinary course.
(b) Except with the prior written approval of the Company or
except as required to conduct the business of the Company in the
ordinary course, the Employee will not, at any time, directly or
indirectly, use, disseminate, disclose, lecture upon or publish articles
concerning any Confidential Information.
(c) Upon the termination of his employment with the Company, all
documents, records, notebooks and similar repositories of or containing
Confidential Information, including any copies thereof, then in the
Employee's possession, or under his control, whether prepared by him or
others, will be left with or immediately returned to the Company by the
Employee.
13. Non-Compete. The Employee agrees that, during the term of his employment
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with the Company and also for one year following the Employee's termination
or departure from the Company, he will not, without the written approval of
the Company, directly or indirectly, under any circumstances whatsoever,
own, manage, operate, engage in, control or participate in the ownership,
management, operation or control of, or be connected in any manner with,
whether as an individual, partner, stockholder, director, officer,
principal, agent, employee or consultant, or in any other relation or
capacity whatsoever, any Competing Organization, and will not in any such
manner compete with the Company or solicit or call on any Customer of the
Company, wherever located, which was a Customer of the Company at any time
during the period one (1 year prior to the termination of the Employee's
employment with the Company for the purpose of inducing such Customer to
purchase or lease a Competing Product. Notwithstanding the foregoing,
nothing contained in this Paragraph 13 shall restrict the Employee from
making any investment in any company whose stock is listed on a national
securities exchange or actively traded in the over-the-counter market, so
long as such investment does not give him the right to control or influence
the policy decisions of any such business or enterprise which is or might
be in competition with any business of the Company.
14. Non-Interference. The Employee will not, for a period of one (1) year
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following the termination of the Employee's employment by the Company,
directly or indirectly, employ, hire, solicit or, in any manner, encourage
any employee of the Company to leave the employ of the Company.
15. Injunctive Relief. In addition to any other rights or remedies
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available to the Company as a result of the breach of the Employee's
obligations hereunder, the Company shall be entitled to enforcement of such
obligations by an injunction or a decree of specific performance from a
court with appropriate jurisdiction and in the event that the Company is
successful in any suit or proceeding brought or instituted by the Company
to enforce any of the provisions of this Agreement or on account of any
damages sustained by the Company by reason of the violation by the Employee
of any of the terms and/or provisions of this Agreement to be performed by
the Employee, the Employee agrees to pay to the Company all attorneys' fees
reasonably incurred by the Company.
16. Withholding. The Employee hereby agrees that he will make such
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arrangements as the Company may deem necessary to discharge any obligations
of the Company to withhold Federal, state or local taxes imposed upon the
Company in respect of this Agreement.
17. Severability. The provisions of this Agreement shall be severable
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and if any part of any provision shall be held invalid or unenforceable or
any separate covenant contained in any provision is held to be unduly
restrictive and void by a final decision of any court or other tribunal of
competent jurisdiction, such part,
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covenant or provision shall be construed to give it maximum lawful validity
and the remaining provisions of this Agreement shall nonetheless remain in
full force and effect.
18. Entire Agreement. This Agreement and the attached "Schedule of
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Benefits" contains the entire agreement of the parties relative to the
subject matter hereof, superseding and terminating all prior agreements or
understandings, whether oral or written, between the parties hereto
relative to the subject matter hereof, and this Agreement may not be
extended, amended, modified or supplemented without the written consent of
the parties hereto.
19. Waivers. Any waiver of the performance of the terms or provisions of this
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Agreement shall be effective only if in writing and signed by the party
against whom such waiver is to be enforced. The failure of either party to
exercise any of his or its rights under this Agreement or to require the
performance of any term or provision of this Agreement, or the waiver by
either party of any breach of this Agreement, shall not prevent a
subsequent exercise or enforcement of such rights or be deemed a waiver of
any subsequent breach of the same or any other term or provision of this
Agreement.
20. Notices. Any notice required or permitted to be given under this
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Agreement shall be in writing and shall be deemed given when personally
delivered or sent by registered or certified mail, postage prepaid, return
receipt requested, to the respective address of the parties hereto as set
forth above or to such other address as either party may designate to the
other party in the manner provided herein for giving notice.
21. Successors and Assigns. This Agreement shall be binding upon and inure
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to the benefit of the heirs, executors, administrators, successors and
legal representatives of the Employee, and shall inure to the benefit of
and be binding upon the Company and any successor to the business of the
Company pursuant to a merger or acquisition of all or substantially all of
its assets, but the obligations of the Employee may not be delegated and
the Employee may not assign, transfer, pledge, encumber, hypothecate or
otherwise dispose of this Agreement, or any of his rights hereunder
(whether by operation of law or otherwise), except as expressly permitted
by this Agreement, and any such attempted delegation or disposition shall
be null and void and without effect.
22. Governing Law. This Agreement shall be governed by and construed and
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enforced in accordance with the laws of the State of Connecticut.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
WILTEK, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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President & Board Member
By: /s/ Xxxxx X. Xxxxx-Xxxxxx
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Xxxxx X. Xxxxx-Xxxxxx
Vice President
WITNESS:
/s/ Xxxxx Xxxxxxx
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Schedule of Benefits
1. Company Car. Company obligation is direct payment of, or reimbursement to
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the Employee, for all lease payments, tax payments, insurance payments,
gasoline payments, service payments, repair payments, maintenance payments.
This benefit will continue for two (2) months after termination.
2. Company Standard Benefits. Health, major medical, dental, eye care,
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orthodontia, life insurance, short-term disability, long-term disability,
401K contribution, in addition to individual benefits provided within this
section ("Schedule of Benefits") to the Employee.
3. Annual Minimum Base Salary. $120,000.
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4. Guaranteed Severance Pay. Six (6) months of Annual Minimum Base Salary.
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5. Supplemental Severance Pay. If employment not found by Employee following
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Guaranteed Severance Pay Period, an additional six (6) months of Annual
Minimum Base Salary.
6. Revenue Bonus. If Wiltek reports fiscal year 1999 revenue (excluding any
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revenue for business's acquired after January 1, 1999) of at least
$6,800,000 then a cash bonus of .30% of total fiscal year 1999 revenue
$7,000,000 then a cash bonus of .32% of total fiscal year 1999 revenue
$7,200,000 then a cash bonus of .34% of total fiscal year 1999 revenue
$7,400,000 then a cash bonus of .36% of total fiscal year 1999 revenue
$7,600,000 then a cash bonus of .38% of total fiscal year 1999 revenue
$7,800,000 then a cash bonus of .40% of total fiscal year 1999 revenue
$8,000,000 then a cash bonus of .42% of total fiscal year 1999 revenue
$8,200,000 then a cash bonus of .44% of total fiscal year 1999 revenue
$8,400,000 then a cash bonus of .46% of total fiscal year 1999 revenue
$8,600,000 then a cash bonus of .48% of total fiscal year 1999 revenue
$8,800,000 then a cash bonus of .50% of total fiscal year 1999 revenue
The Company shall make full cash bonus payment to Employee within 60 days
(December 30, 1999) of close of fiscal year 1999. In the event of termination
any bonus accumulated as of the date of termination will be payable by the
Company to the Employee within 30 days of termination.
IN WITNESS WHEREOF, the parties have executed this Schedule of Benefits
as of the date first above written.
WILTEK, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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President & Board Member
By: /s/ Xxxxx X. Xxxxx-Xxxxxx
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Xxxxx X. Xxxxx-Xxxxxx
Vice President
WITNESS:
/s/ Xxxxx Xxxxxxx
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