EMPLOYMENT AGREEMENT
THIS AGREEMENT IS EFFECTIVE AS OF MARCH 6, 2000, BETWEEN THE NETWORK
CONNECTION, INC. ("COMPANY") AND XXX XXXXX ("EXECUTIVE").
WITNESSETH:
Company wishes to employ Executive and Executive wishes to enter into the
employ of Company on the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the facts, mutual promises and
covenants contained herein and intending to be legally bound hereby, Company and
Executive agree as follows:
1. EMPLOYMENT. Company hereby employs Executive and Executive hereby
accepts employment by Company for the period and upon the terms and conditions
contained in this Agreement.
2. OFFICE AND DUTIES.
(a) The Executive is engaged hereunder as the Company's Executive Vice
President and agrees to perform the duties and services incident to that
position. The Executive will report to the Board of Directors of Company on a
regular basis. During the course of his employment hereunder, Executive shall be
an invited guest to observe Board meetings. Within 30 days after six months of
employment under this Agreement have elapsed, the Board of Directors of Company
shall convene a meeting in order to consider the addition of Executive to the
Board, based upon his performance to date.
(b) Throughout the term of this Agreement, Executive shall devote
substantially all of his working time, energy, skill and best efforts to the
performance of his duties hereunder in a manner which will faithfully and
diligently further the business and interests of Company. The foregoing shall
not be construed, however, as preventing the Executive from investing his assets
in such form or manner as will not require services on the part of the Executive
in the operations of the business in which such investment is made that would
interfere with his obligations hereunder, and provided such business is not in
competition with the company or, if in competition, such business has a class of
securities registered under the Securities Exchange Act of 1934 and the interest
of Executive therein is solely that of an investor owning not more than 3% of
any class of the outstanding equity securities of such business.
3. TERM. This Agreement shall be for a term of thirty-six (36) months,
commencing as of March 6, 2000, and ending on March 6, 2003, unless sooner
terminated as hereinafter provided. This Agreement shall terminate at the end of
the original term, provided, however, that the parties hereto shall, at least
sixty (60) days prior to the end of the term hereof, use their best efforts to
determine whether the Agreement will be renewed or renegotiated.
4. COMPENSATION.
(a) For all services to be rendered by Executive to Company pursuant
to this Agreement, Executive shall receive an annual base salary of Two Hundred
Thousand Dollars ($200,000), payable in accordance with Company's regular
payroll practices in effect from time to time.
(b) In addition to Executive's base salary, Company shall pay to
Executive a cash bonus for each year that Executive's employment continues under
this Agreement. The amount of this bonus shall be dependent and based upon the
achievement of certain corporate objectives that shall be determined mutually by
Executive and Company, and shall be in an amount of up to 50% of Executive's
annual base salary. It is anticipated that these corporate objectives will be
tied at least in part to fiscal year performance. The bonus shall be payable
within 60 days of the end of the fiscal year to which it relates. The first
bonus pursuant to this section would therefore be payable by August 31, 2000
(Company's fiscal year end is June 30), and shall be prorated to take into
account the period of time during fiscal year 2000 that Executive actually
worked with Company. Likewise, in the event that this Agreement is not renewed
at the end of its term and Executive is entitled to bonus under this section for
fiscal year 2003, such bonus shall be prorated in the same manner.
(c) Throughout the term of this Agreement and as long as they are kept
in force by Company, Executive shall be entitled to participate in and receive
the benefits of any profit sharing or retirement plans and any health, life,
accident or disability insurance plans or programs made available to other
similarly situated executives of Company. Specifically, Executive shall be
provided family medical and dental coverage at Company's expense. Executive
shall be entitled to four (4) weeks paid vacation during each year of the term
of this Agreement. Executive shall be entitled to an additional week of paid
vacation in order to keep his continuing medical education obligations current.
(d) Company will provide Executive with an automobile allowance of
$500 per month and Company will reimburse Executive for all reasonable expenses
incurred by Executive in connection with the performance of Executive's duties
hereunder, including mobile phone and club memberships, upon receipt of vouchers
therefor and in accordance with Company's regular reimbursement procedures and
practices in effect from time to time.
(e) The Company shall grant to Executive options to purchase up to an
aggregate of Eight Hundred Thousand (800,000) shares of the Company's common
stock, par value $0.001 per share, at an exercise price per share equal to the
last sale price of a share of such common stock as of the close of business on
the day prior to the execution and delivery of this Agreement, as reported by
Nasdaq, pursuant to a separate Stock Option Grant Agreement (the "Plan").
5. DISABILITY. If Executive becomes unable to perform his duties hereunder
due to partial or total disability or incapacity resulting from a mental or
physical illness, injury or any other cause ("Disability"), Company will
continue the payment of Executive's base salary at its then current rate for a
period of twelve (12) weeks following the date Executive is first unable to
perform his duties due to such disability or incapacity. Thereafter, Company
shall have no obligation for base salary or other compensation payments to
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Executive during the continuance of such disability or incapacity, except as
provided in the Company's disability policy, if any.
6. DEATH. If Executive dies, all payments hereunder shall cease at the end
of the month in which Executive's death shall occur and Company shall have no
further obligations or liabilities hereunder to Executive's estate or legal
representative or otherwise. Notwithstanding the immediately preceding sentence,
Company shall pay to Executive's estate or legal representatives any bonus
applicable for the fiscal year in which death occurs prorated to take into
account the period of time during such fiscal year that Executive actually
worked with Company.
7. TERMINATION WITHOUT CAUSE, UPON TERMINATION OF COMPANY'S BUSINESS, AND
AFTER CHANGE IN CONTROL. (1) If (i) Company shall terminate Executive without
Cause (as defined in Xxxxxxxxx 0 xxxxx), (xx) Company shall discontinue the
business operation in which Executive is employed, or (iii) the Executive leaves
the employ of Company for Good Reason (as hereinafter defined), then, on the
occurrence of any of such events, Company shall have no further obligations or
liabilities hereunder to Executive, except Company shall (A) pay Executive an
amount equal to one-half his annual base salary, to be paid in accordance with
the regular payroll practices of Company; (B) notwithstanding anything to the
contrary contained in the Plan, the vesting of the installment of options that
except for the termination of employment would have been the next to vest, shall
be accelerated to the date of termination and shall thereafter be exercisable in
accordance with the Plan; and (C) continue to provide Executive with family
medical and dental coverage for a period of six months. In addition, in the
event of termination of Executive pursuant to this Paragraph, the restrictions
of subparagraph 10(a) shall terminate.
(2) "Good Reason" shall mean the occurrence of any of the following
events without the Executive's express written consent:
(i) any change in the Executive's title, authorities,
responsibilities (including reporting responsibilities), which represent a
demotion from his status, title, position or responsibilities (including
reporting responsibilities) as in effect immediately prior to the Change in
Control; the assignment to him of any duty or work responsibilities which are
inconsistent with such status, title, position or work responsibilities; or any
removal of the Executive from or failure to appoint or reelect him to any of
such positions, except in connection with the termination of his employment for
Disability, retirement or Cause, as a result of the Executive's death or by him
other than for Good Reason;
(ii) a reduction by the Company in the Executive's annual base
salary as in effect on the date hereof or as the same may be increased from time
to time; or
(iii) the failure of the Company to obtain a satisfactory
agreement from any successor or assign of the Company to assume and agree to
perform this Agreement.
(3) Notwithstanding anything to the contrary contained in this
Paragraph 7, Company shall pay to Executive any bonus applicable for the fiscal
year in which a termination pursuant to this Paragraph occurs prorated to take
into account the period of time during such fiscal year that Executive actually
worked with Company.
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8. TERMINATION FOR CAUSE. Company may discharge the Executive and thereby
terminate his employment hereunder for the following reasons (for "Cause"):
(a) habitual intoxication;
(b) habitual illegal drug use or drug addition;
(c) conviction of a felony, materially adversely affecting Company or
where such conviction significantly impairs the Executive's ability to perform
his duties hereunder;
(d) while acting in his capacity as Executive of Company, knowingly
engaging in any unlawful activity which could materially adversely affect the
Company;
(e) gross insubordination, gross negligence, or willful and knowing
violation of any expressed direction or regulation established by Company which
is materially injurious to the business or reputation of Company;
(f) misappropriation of corporate funds or other acts of dishonesty;
and
(g) the Executive's material breach of this Agreement in any other
respect, provided that the Company notifies the Executive in writing indicating
with reasonable detail the nature of the breach and the Executive fails to cure
the breach or render it non-material within 15 days after receipt of notice.
In the event that Company discharges the executive for Cause, Company shall
pay to Executive the portion, if any, of the Executive's base salary for the
period up to the date of termination which remains unpaid. The Company shall
have no further obligation or liability under this Agreement.
9. COMPANY PROPERTY. All advertising, sales, manufacturers' and other
materials or articles or information, including without limitation data
processing reports, customer sales analyses, invoices, price lists or
information, samples, budgets, business plans, strategic plans, financing
applications, reports, memoranda, correspondence, financial statements, and any
other materials or data of any kind furnished to Executive by Company or
developed by Executive on behalf of Company or at Company's direction or for
Company's use or otherwise in connection with Executive's employment hereunder,
are and shall remain the sole and confidential property of Company; if Company
requests the return of any such materials at any time during or at or after the
termination of Executive's employment, Executive shall immediately deliver the
same to Company.
10. NONCOMPETITION, TRADE SECRETS, ETC.
(a) During the term of this Agreement and for a period of one year
after the termination of his employment with Company for any reason whatsoever,
Executive shall not directly or indirectly induce or attempt to influence any
executive of Company to terminate his or her employment with Company and shall
not engage in (as a principal, partner, director, officer, agent, executive,
consultant or otherwise) or be financially interested in any business operating
within the geographical area described in Exhibit "A", attached hereto, which is
involved in a Competitive Business (as hereinafter defined). A "Competitive
Business" is any business that engages in the development, manufacture, sale
and/or installation of computer servers, or of information or entertainment
systems for use in the hotel, time-share, hospitality, commercial or residential
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real estate, cruise line or other watercraft, passenger rail or other rail
transport, education, air line or other aircraft, or corporate training market,
and in the procurement and provision of content for such systems. However,
nothing contained in this Paragraph 10 shall prevent Executive from holding for
investment no more than three percent of any class of equity securities of a
company whose securities are traded on a national securities exchange or the
Nasdaq System.
(b) During the term of this Agreement and at all times thereafter,
Executive shall not use for his personal benefit, or disclose, communicate or
divulge to, or use for the direct or indirect benefit of any person, firm,
association or company other than the Company, any material referred to in
Paragraph 9 above or any information regarding the business methods, business
policies, procedures, techniques, research or development projects or results,
trade secrets, or other knowledge or processes of or developed by the Company or
any names and addresses of customers or clients, any data on or relating to
past, present or prospective customers or clients, or any other confidential
information relating to or dealing with the business operations or activities of
Company, made known to Executive or learned or acquired by Executive while in
the employ of Company. The limitations of this paragraph shall not apply to any
information that has become previously disclosed to the public by the Company or
has become public knowledge other than by a breach of this Agreement.
(c) Any and all reports, plans, budgets, writings, inventions,
improvements, processes, procedures and/or techniques which Executive may make,
conceive, discover or develop, either solely or jointly with any other person or
persons, at any time during the term of this Agreement, whether during working
hours or at any other time and whether at the request or upon the suggestion of
the Company or otherwise, which relate to or are useful in connection with any
business now or hereafter carried on or contemplated by the Company, including
developments or expansions of its present fields of operations, shall be the
sole and exclusive property of Company. Executive shall make full disclosure to
Company of all such reports, plans, budgets, writings, inventions, improvements,
processes, procedures and techniques, and shall do everything reasonably
necessary or desirable to vest the absolute title thereto in Company. Executive
shall write and prepare all specifications and procedures regarding such
inventions, improvements, processes, procedures and techniques and otherwise aid
and assist Company so that Company can prepare and present applications for
copyright or Letters Patent therefor and can secure such copyright or Letters
Patent wherever possible, as well as reissues, renewals, and extensions thereof,
and can obtain the record title to such copyright or patents so that Company
shall be the sole and absolute owner thereof in all countries in which it may
desire to have copyright or patent protection. Executive shall not be entitled
to any additional or special compensation or reimbursement regarding any and all
such writings, inventions, improvements, processes, procedures and techniques.
(d) Executive acknowledges that the restrictions contained in the
foregoing subparagraphs (a), (b) and (c), in view of the nature of the business
in which Company is engaged, are reasonable and necessary in order to protect
the legitimate interests of Company, and that any violation thereof would result
in irreparable injuries to Company, and Executive therefore acknowledges that,
in the event of his violation of any of these restrictions, Company shall be
entitled to obtain from any court of competent jurisdiction preliminary and
permanent injunctive relief as well as damages and an equitable accounting of
all earnings, profits and other benefits arising from such violation, which
rights shall be cumulative and in addition to any other rights or remedies to
which Company may be entitled.
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(e) If the period of time or the area specified in subparagraph (a)
above should be adjudged unreasonable in any proceeding, then the period of time
shall be reduced by such amount of time or the area shall be reduced by the
elimination of such portion thereof or both so that such restrictions may be
enforced in such area and for such time as is adjudged to be reasonable. If
Executive violates any of the restrictions contained in such subparagraph (a),
the restrictive period shall not run in favor of Executive from the time of the
commencement of any such violation until such time as such violation shall be
cured by Executive to the satisfaction of Company.
11. PRIOR AGREEMENTS. Executive represents to Company (a) that there are no
restrictions, agreements or understandings whatsoever to which Executive is a
party which would prevent or make unlawful his execution of this Agreement or
his employment hereunder, (b) that his execution of this Agreement and his
employment hereunder shall not constitute a breach of any contract, agreement or
understanding, oral or written, to which he is a party or by which he is bound
and (c) that he is free and able to execute this Agreement and to enter into
employment by Company. In the event, however, that Executive is named a
defendant in any legal action or proceeding alleging a breach of the
non-compete, non-solicitation or confidentiality provisions of his employment
contract with Aetna US Healthcare in connection with his employment hereunder,
Company agrees to indemnify and hold Executive harmless against any claims,
damages, losses, judgments, expenses, costs or other liabilities (including,
without limitation, reasonable attorneys' fees) arising therefrom.
12. INDEMNIFICATION. Company maintains and shall continue to maintain
Directors and Officers Errors and Omission coverage with a minimum coverage of
at least Fifteen Million Dollars ($15,000,000). Any deductible and all other
costs and expenses which may be incurred by Executive as a result of his acting
in his capacity as an Officer of the Company shall be paid by Company.
13. MISCELLANEOUS.
(a) Indulgences, Etc. Neither the failure nor any delay on the part of
either party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such waiver.
(b) Controlling Law. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement (including, without
limitation, provisions concerning limitations of actions), shall be governed by
and construed in accordance with the laws of the State of Delaware,
notwithstanding any conflict-of-laws doctrines of any jurisdiction to the
contrary, and without the aid of any canon, custom or rule of law requiring
construction against the draftsman.
(c) Notices. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made and received only when delivered
(personally, by courier service such as FedEx or by other messenger) against
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receipt or upon actual receipt of registered or certified mail, postage prepaid,
return receipt requested, addressed as set forth below:
(i) If to Company:
The Network Connection, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Chief Executive Officer
(ii) If to Executive:
Xxx Xxxxx
-------------------------------------
-------------------------------------
-------------------------------------
In addition, notice by mail shall be by air mail if posted outside of the
continental United States. Either party may alter the address to which
communications or copies are to be sent by giving notice of such change of
address in conformity with the provisions of this subparagraph for the giving of
notice.
(d) Exhibits. All Exhibits attached hereto are hereby incorporated by
reference into, and made a part of, this Agreement.
(e) Binding Nature of Agreement; No Assignment. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns, except that
no party may assign or transfer its rights nor delegate its obligations under
this Agreement without the prior written consent of the other party hereto.
(f) Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories.
(g) Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(h) Entire Agreement. This Agreement contains the entire understanding
between the parties hereto with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements and understandings,
inducements or conditions, express or implied, oral or written, except as herein
contained. The express terms hereof control and supersede any course of
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performance and/or usage of the trade inconsistent with any of the terms hereof.
This Agreement may not be modified or amended other than by an agreement in
writing.
(i) Paragraph Headings. The Paragraph and subparagraph headings in
this Agreement have been inserted for convenience of reference only; they form
no part of this Agreement and shall not affect its interpretation.
(j) Gender, Etc. Words used herein, regardless of the number and
gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context indicates is appropriate.
(k) Number of Days. In computing the number of days for purposes of
this Agreement, all days shall be counted, including Saturdays, Sundays and
Holidays; provided, however, that if the final day of any time period falls on a
Saturday, Sunday or Holiday, then the final day shall be deemed to be the next
day which is not a Saturday, Sunday or Holiday. For purposes of this Agreement,
the term "Holiday" shall mean a day, other than a Saturday or Sunday, on which
national banks with branches in the Commonwealth of Pennsylvania are or may
elect to be closed.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered in Philadelphia, Pennsylvania, as of the date first above written.
THE NETWORK CONNECTION, INC.
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Xxxxx X. Xxxxx,
Chairman and Chief Executive Officer
EXECUTIVE:
/s/ Xxx Xxxxx
------------------------------------------
Xxx Xxxxx
EXHIBIT "A"
Under Paragraph 11, Noncompetition, Trade Secrets, Etc., the geographic
area shall be as follows:
Worldwide
