September 28, 2006 Mr. J.W. Braukman III Delray Beach, FL 33444 Dear Mr. Braukman ,
EXHIBIT
10.1
September
28, 2006
Xx.
X.X.
Xxxxxxxx III
000
X.X.
0xx
Xxxxxx
Xxxxxx
Xxxxx, XX 00000
Dear
Xx.
Xxxxxxxx ,
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1.
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General.
Effective September 28, 2006, MTM Technologies, Inc. (the “Company”)
hereby employs you (the “Executive”), and the Executive accepts employment
by the Company as Senior Vice President and Chief Financial Officer
of the
Company. The Executive shall be employed by the Company on an
“at-will” basis and the Company and the Executive shall have the right to
terminate this Letter Agreement (“Agreement”) at any time upon thirty (30)
days written notice to the other party.
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2.
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Duties
and Status.
During the period that the Executive is employed by the Company (the
“Employment Period”), the Executive shall report directly to the Chief
Executive Officer of the Company and exercise such authority, perform
such
executive duties and functions and discharge such executive
responsibilities as are reasonably associated with the Executive’s
position, consistent with the responsibilities assigned to officers
of
companies comparable to the Company, commensurate with the authority
vested in the Executive pursuant to this Agreement and consistent
with the
By-laws of the Company. The Executive will render such business and
professional services in the performance of his duties, consistent
with
the Executive’s position within the Company, as shall reasonably be
assigned to him by the Chief Executive Officer of the Company.
During the Employment Period, the Executive shall devote substantially
all
of his business time and his full skill and efforts to the business
of the
Company.
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3.
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Compensation;
Benefits and Expenses .
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a.
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Salary.
During the Employment Period, the Company shall pay to the Executive,
as
compensation for the performance of his duties and obligations under
this
Agreement, a base salary at the rate of $260,000 per annum, payable
in
arrears not less frequently than monthly in accordance with the normal
payroll practices of the Company. The Executive’s base salary shall
be subject to review each year for possible increase by the Board
in its
sole discretion, but in no event shall such base salary be decreased
from
its then existing level during the Employment Period.
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b.
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Bonus.
In addition to the base salary payable to the Executive hereunder,
the
Executive also shall be entitled to receive additional compensation,
at
such times and in such amounts, as shall be determined in the sole
discretion of the Board and the Compensation Committee thereof, consistent
with the management bonus plan of the Company in
effect
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| from time to time for senior executives, if any. |
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c.
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Stock
Options.
Subject to the approval of the Board and the Compensation Committee
thereof, the Executive shall be entitled to receive awards under
any stock
option or equity based incentive compensation plan or arrangement
adopted
by the Company during the Employment Period for which senior executives
are eligible. The level of the Executive’s participation in any such
plan or arrangement shall be determined in the sole discretion of
the
Board and the Compensation Committee thereof.
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d.
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Paid
Time Off.
The Executive shall be entitled to twenty-two (22) days paid time
off per
calendar year; provided, however,
that no more than ten (10) days of such paid time off may be used
consecutively, and provided,
further,
that any accrued but unused paid time off remaining at the end of
each
calendar year shall be forfeited. The foregoing shall accrue at a
rate of
1.83 days per month beginning sixty (60) days after your first day
of
active service with the Company.
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e.
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Other
Benefits.
During the Employment Period, the Executive shall be entitled to
participate in all of the employee benefit plans, programs and
arrangements of the Company in effect during the Employment Period
which
are generally available to the most senior executives of the Company
(including, without limitation, 401(k) and group medical insurance
plans),
subject to and on a basis consistent with the terms, conditions and
overall administration of such plans, programs and arrangements.
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f.
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Expenses.
In addition to any amounts payable to the Executive pursuant to this
Section 3, the Company shall reimburse the Executive upon production
of accounts and vouchers or other reasonable evidence of payment
by the
Executive, all in accordance with the Company’s regular procedures in
effect from time to time, all reasonable and ordinary expenses as
shall
have been incurred by him in the performance of his duties hereunder.
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| g. | Relocation Allowances. The Company shall pay to the Executive, or to a third party on the Executive’s behalf as agreed by the Company and the Executive, the following amounts related to the commencement of the Executive’s employment with the Company: (i) $19,500, such amount to be paid within thirty (30) days of the sale of the Executive’s Cincinnati residence, and (ii) $50,000, such amount being related to certain reimbursement obligations of Executive and relocation expenses incurred by Executive and to be paid from time to time a reasonably agreed by the Executive and the Company. Amounts payable under the subparagraph (g) will be grossed up for taxes. In addition to the foregoing payments, the Company will reimburse the Executive for reasonable and necessary commuting and temporary living expenses related to the transition of the Executive to the Company’s Stamford, Connecticut headquarters. The Executive and the Company will work to structure all payments under this subparagraph (g) as necessary to minimize the impact of Federal and state taxes. |
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4.
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Termination
Without Cause or for Good Reason.
Notwithstanding any other term of this Agreement, in the event of
a
termination of the Executive’s employment on or before the fourth
(4th)
anniversary date of this Agreement (x) by the Company other than
for
“cause” (as defined in Section 4(d) hereof) or (y) by the Executive
for “good reason” (as defined in Section 4(e) hereof) or (z) as a
result of death or Permanent and Total Disability (as defined in
Section 4(g) hereof), in each case the Company shall provide to the
Executive (or his legal representative) (i) the rights, payments and
benefits payable at such times as set forth herein, and (ii) a release
and
waiver of claims in favor of the Executive, substantially in the
form
attached hereto as Exhibit
A,
as
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consideration
for the execution and non-revocation by the Executive of a release
agreement in favor of the Company and its shareholders and their
respective directors, officers and employees, substantially in
the form
attached hereto as Exhibit
B:
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a.
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Salary.
A continuance of his salary at one hundred percent (100%) of his
then
current base salary, as a severance payment, for a period equal to
one (1)
year from the date of termination of the Executive’s employment (the
“Severance Period”). Any payments pursuant to this Section 4(a)
shall be in lieu of any other severance benefits to which the Executive
is
entitled pursuant to any other severance plans, programs, arrangements,
or
policies of the Company.
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b.
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Options.
The impact of the Executive’s termination of employment on the stock
options held by the Executive shall be governed by the applicable
stock
option plan and agreement.
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c.
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Other
Benefits.
During the Severance Period, the Executive will be entitled to a
continuance of coverage under all health, life, disability and similar
employee benefit plans and programs of the Company on the same basis
as
the Executive was entitled to participate immediately prior to the
Severance Period, provided that the Executive’s continued participation is
possible under the general terms and provisions of such plans and
programs. In the event that the Executive’s participation in any
such plan or program is barred for any reason, the Company shall
arrange
to provide the Executive with benefits substantially similar to those
which the Executive would otherwise have been entitled to receive
under
such plans and programs from which his continued participation is
barred;
provided,
however,
that the aggregate cost of providing benefits to the Executive pursuant
to
this Section 4(c) shall not be materially increased as a result of
providing such alternative coverage. In the event that the Executive
is covered under substitute benefit plans of another employer prior
to the
expiration of the Severance Period, the Company will no longer be
obligated to continue the respective coverage’s provided for in this
Section 4(c).
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d.
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Cause.
For purposes of this Agreement and subject to the Executive’s opportunity
to cure as provided in Section 4(f) hereof, the Company shall have
“cause” to terminate the Executive’s employment hereunder if such
termination shall be the result of:
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i.
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the
Executive’s failure to comply in any material manner with the reasonable
policies and rules of the Company or the directives of the Board;
or
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ii.
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the
Executive’s performance of any material act of fraud or dishonesty in
connection with the performance of his duties hereunder;
or
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iii.
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the
Executive’s gross negligence or willful misconduct in the performance of
his duties hereunder; or
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iv.
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the
Executive’s conviction for, or plea of nolo
contendere
to, a felony or misdemeanor resulting in a jail sentence or any crime
involving moral turpitude; or
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v.
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any
material breach by the Executive of the obligations set forth below
in
Section 10.
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e.
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Good
Reason.
For purposes of this Agreement and subject to the Company’s opportunity to
cure as provided in Section 4(f) hereof, the Executive shall have
“good reason” to terminate his employment hereunder if such termination
shall be the result of a reduction by the Company of the Executive’s base
salary.
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f.
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Cure
Rights.
Notwithstanding the provisions of Sections 4(d) and 4(e) hereof,
it shall
be a condition precedent to the Company’s right to terminate the
Executive’s employment for “cause” and the Executive’s right to terminate
his employment for “good reason” that (1) the party seeking the
termination shall first have given the other party written notice
stating
with reasonable specificity the reason for the termination (“breach”) and
(2) if such breach is susceptible of cure or remedy, a period of
thirty
(30) days from and after the giving of such notice shall have elapsed
without the breaching party having effectively cured or remedied
such
breach during such 30-day period, unless such breach cannot be cured
or
remedied within thirty (30) days, in which case the period for remedy
or
cure shall be extended for a reasonable time (not to exceed an additional
thirty (30) days) provided the breaching party has made and continues
to
make a diligent effort to effect such remedy or cure.
Notwithstanding anything to the contrary contained herein, the right
to
cure set forth in this Section 4(f) shall not apply if there are
habitual or repeated breaches by either party.
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g.
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Permanent
and Total Disability.
The Employment Period shall be terminated by the death of the Executive.
The Employment Period may be terminated by the Board if the Executive
shall be rendered incapable of performing his duties to the Company
by
reason of any medically determined physical or mental impairment
for a
period of either (i) six (6) or
more consecutive months from the first date of the Executive’s absence due
to the disability or (ii) nine (9) months during any eighteen
(18) month
period (a “Permanent and Total Disability”). If the Employment Period is
terminated by reason of Permanent and Total Disability of the Executive,
the Company shall give thirty (30) days’ advance written notice to that
effect to the Executive. Until the effective date of the termination
as a
result of a Permanent and Total Disability, the Company shall continue
to
pay to the Executive the compensation set forth in Section 3 hereof;
provided,
however,
that to the extent that the Executive receives payments pursuant
to any
disability insurance policy for which the Company pays the premium,
the
Company may deduct the amounts received by the Executive pursuant
to that
policy from the compensation payable to
him.
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5.
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Other
Termination of Employment.
In the event that the Executive’s employment with the Company is
terminated during the Employment Period by the Company for “cause”, or by
the Executive other than for “good reason”, the Company shall pay the
Executive (or his legal representative) any earned but unpaid salary
amounts and any un-reimbursed expenses through the Executive’s final date
of employment with the Company, and the Company shall have no further
obligations to the Executive, except under the plans, programs and
arrangements described in Section 3(e) hereof in accordance with the
terms of such plans.
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6.
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Withholding
of Taxes.
All payments required to be made by the Company to the Executive
under
this Agreement shall be subject to the withholding of such amounts,
if
any, relating to tax, excise tax and other payroll deductions as
the
Company may reasonably determine it should withhold pursuant to any
applicable law or regulation.
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7.
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No
Other Obligations.
The benefits payable to the Executive under this Agreement are not
in lieu
of any benefits payable under any employee benefit plan, program
or
arrangement of the Company, except as provided specifically herein,
and
upon termination, the Executive will receive such benefits or payments,
if
any, as he may be entitled to receive pursuant to the terms of such
plans,
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| programs and arrangements. Except for the obligations of the Company provided by this Agreement (including, without limitation, pursuant to the preceding sentence hereof), the Company shall have no further obligations to the Executive upon his termination of employment. |
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8.
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Reduction
for “Parachute Payments”.
Notwithstanding anything in this Agreement to the contrary, any amounts
payable hereunder to the Executive in connection with a change in
control,
as well as any other “parachute payments,” as such term is defined under
Section 280G of the Internal Revenue Code of 1986, as amended (the
“Code”), payable under any other plans, agreements or policies of the
Company, shall be reduced to the extent necessary to assure that
the
Executive does not become subject to the excess parachute payment
excise
tax under Section 4999 of the Code and the Company does not lose all
or part of its compensation deduction for such payments.
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9.
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Indemnity.
The Company shall, during his employment with the Company and thereafter,
indemnify the Executive to the fullest extent permitted by law and
by its
Certificate of Incorporation and By-laws and shall assure that the
Executive is covered by the Company’s directors’ and officers’ insurance
policies and any other insurance policies that protect employees,
as in
effect from time to time.
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10.
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Restrictive
Covenants .
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a.
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Proprietary
Information.
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i.
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The
Executive agrees that all information and know-how, whether or not
in
writing, of a private, secret or confidential nature concerning the
business or financial affairs of the Company or any of the Company’s
Affiliates is and shall be the exclusive property of the Company
or the
Company’s Affiliates. Such information and know-how shall include,
but not be limited to, inventions, products, processes, methods,
techniques, formulas, compositions, compounds, projects, developments,
plans, research data, clinical data, financial data, personnel data,
computer programs, and customer and supplier lists (collectively,
“Proprietary Information.”). Except in connection with, and on a
basis consistent with, the performance of his duties hereunder, the
Executive shall not disclose any Proprietary Information to others
outside
the Company or the Company’s Affiliates or use the same for any
unauthorized purposes without written approval by the Board, either
during
or after the Employment Period.
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ii.
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The
Executive agrees that all files, letters, memoranda, reports, records,
data, sketches, drawings, laboratory notebooks, program listings,
customer
lists, customer solicitations or other written, photographic, or
other
tangible material containing Proprietary Information, whether created
by
the Executive or others, which shall come into his custody or possession,
shall be and are the exclusive property of the Company or the Company’s
Affiliates to be used by the Executive only in the performance of
his
duties for the Company. The Executive agrees to deliver to the
Company upon the expiration of the Employment Period such material
containing Proprietary Information.
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iii.
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The
Executive agrees that his obligation not to disclose or use information,
know-how and records of the types set forth in paragraphs (i) and
(ii)
above, also extends to such types of information, know-how, records
and
tangible property of
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| customers of the Company or the Company’s Affiliates or suppliers to the Company or the Company’s Affiliates or other third parties who may have disclosed or entrusted the same to the Company or the Company’s Affiliates or to the Executive in the course of the Company’s business. |
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iv.
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Notwithstanding
the foregoing, such Proprietary Information shall not include information
which (A) is or becomes generally available or known to the public,
other
than as a result of any disclosure by the Executive in violation
hereof;
or (B) is or becomes available to the Executive on a non-confidential
basis from any source other than the Company, other than any such
source
that the Executive knows is prohibited by a legal, contractual, or
fiduciary obligation to the Company from disclosing such
information.
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v.
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Other
than in connection with any requirements pursuant to applicable
“whistleblower” statutes, in the event that the Executive is requested
pursuant to, or becomes compelled by, any applicable law, regulation,
or
legal process to disclose any Proprietary Information, the Executive
shall
provide the Company with prompt written notice thereof so that the
Company
may seek a protective order or other appropriate remedy or, in the
Company’s sole and absolute discretion, waive compliance with the terms
hereof. In the event that no such protective order or other remedy
is obtained, or the Company waives compliance with the terms hereof,
the
Executive shall furnish only that portion of such Proprietary Information
which the Executive is advised by counsel is legally required. The
Executive will cooperate with the Company, at the Company’s sole cost and
expense, in its efforts to obtain reliable assurance that confidential
treatment will be accorded such Proprietary Information.
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b.
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Developments.
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i.
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The
Executive shall make full and prompt disclosure to the Company of
all
inventions, improvements, discoveries, methods, developments, software,
and works of authorship, whether patentable or not, which are created,
made, conceived or reduced to practice by the Executive or under
his
direction or jointly with others during the Employment Period, whether
or
not during normal working hours or on the premises of the Company
or the
Company’s Affiliates (collectively, “Developments”).
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ii.
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The
Executive agrees to assign and does hereby assign to the Company
(or any
entity designated by the Company) all his right, title and interest
in and
to all Developments and all related patents, patent applications,
copyrights and copyright applications. The Executive also hereby
waives
all claims to moral rights in any Developments.
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iii.
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Notwithstanding
anything to the contrary contained herein, the provisions of Sections
10(b)(i) and 10(b)(ii) hereof shall not apply to Developments which
consist of products (and not of services) which do not relate to
the
present or planned business or research and development of the Company
or
the Company’s Affiliates and which are made and conceived by the Executive
not during normal working hours, not on the premises of the Company
or the
Company’s Affiliates and not using the tools, devices, equipment or
personnel of the Company or the Company’s Affiliates or Proprietary
Information.
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iv.
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The
Executive agrees to cooperate fully with the Company or the
Company’s
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| Affiliates, both during and after the Employment Period, with respect to the procurement, maintenance and enforcement of copyrights and patents (both in the United States and foreign countries) relating to Developments. The Executive shall sign all papers, including, without limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignment of priority rights, and powers of attorney, which the Company or the Company’s Affiliates may deem reasonably necessary or desirable in order to protect their rights and interests in any Development. |
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c.
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Other
Agreements.
The Executive represents that his performance of all the terms of
this
Agreement and his employment as an employee of the Company does not
and
will not breach any agreement, (i) to keep in confidence proprietary
information, knowledge or data acquired by him in confidence or in
trust
prior to his employment with the Company, (ii) to refrain from competing,
directly or indirectly, with the business of his previous employer
or any
other party, and (iii) to refrain from soliciting the employment
of any
employees of his previous employer or any other party.
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d.
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Non-Competition
and Non-Solicitation .
During the Executive’s employment hereunder and for a period of (i)
two (2) years thereafter upon the Executive’s terminating his employment
by giving notice to the Company as set forth in Section 1 hereof or
(ii) one (1) year thereafter upon the Company terminating the Executive’s
employment by giving notice to the Executive as set forth in
Section 1 hereof, without the prior written consent of the Company,
the Executive shall not engage (whether as an employee, consultant,
director or independent contractor) in any Business Activities on
behalf
of any person, firm or corporation, and the Executive shall not acquire
any financial interest (except for equity interests in publicly-held
companies that will not be significant and that, in any event, will
not
exceed five percent (5%) of equity of that company) in any entity
which
engages in Business Activities within 200 miles of any of the Company’s
offices in operation on the Commencement Date and within 100 miles
of any
office of the Company established after the Commencement Date.
During the period that the above non-competition restriction applies,
the
Executive shall not, without the written consent of the Company (i)
solicit any employee of the Company or any of the Company’s Affiliates to
terminate his employment, or (ii) solicit any customers, partners,
resellers, vendors or suppliers of the Company on behalf of any individual
or entity other than the Company or its Affiliates. As used herein,
the term “Business Activities” shall mean conduct of business as a
computer and communications technology management and/or consulting
business providing information technology networking and data center
services, including secure access, voice over internet protocol (“VOIP”),
storage, security, messaging solutions, network and mainframe connectivity
consulting, remote network monitoring and management, network and
system
diagnostics, product maintenance and support, training, and product
procurement solutions.
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e.
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Enforcement.
The Company shall be entitled to seek a restraining order or injunction
in
any court of competent jurisdiction to prevent any continuation of
any
violation of the provisions of this Section 10.
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f.
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Affiliates.
For purposes hereof, the Company’s Affiliates shall mean any individual or
entity that directly or indirectly, through one or more intermediaries,
controls, is controlled by or is under common control with the
Company. For purposes of this definition, “control” means the power
to direct the management and policies of
another,
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11.
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Notice.
All notices, requests and other communications pursuant to this Agreement
shall be in writing and shall be deemed to have been duly given,
if
delivered in person against written receipt therefor, or by overnight
courier, or sent by express, registered or certified mail, postage
prepaid, addressed as follows:
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If
to the
Executive:
Xx.
X.X.
Xxxxxxxx, III
000
X.X.
0xx
Xxxxxx
Xxxxxx
Xxxxx, XX 00000
If
to the
Company:
0000
Xxxx
Xxxxx Xxxx
Xxxxxxxx,
XX 00000
Attn:
Chief Executive Officer
Either
party may, by written notice to the other, change the address to which notices
to such party are to be delivered or mailed.
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12.
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Dispute
Resolution; Mediation and Arbitration.
Except as specifically provided herein, any dispute or controversy
arising
under or in connection with this Agreement shall be, upon the demand
of
either party, subject to a non-binding mediation proceeding before
a
mediator on the panel of the CPR Institute for Dispute Resolution,
such
mediator to be agreed upon by the parties. If a mediator is not
agreed upon or if mediation is not successful, the matter shall be
settled
exclusively by arbitration, conducted before a single arbitrator
mutually
selected by the parties, in the State of New York, in accordance
with the
rules of the American Arbitration Association then in effect. If the
parties are unable to agree on a single arbitrator, each party shall
select an arbitrator and the two arbitrators selected by the parties
shall
select a third arbitrator. If three arbitrators are selected, they
shall act by majority vote. Judgment may be entered on the
arbitrator’s award in any court having jurisdiction. Each party
shall bear their own costs and expenses of any such mediation or
arbitration proceeding and shall split evenly any common costs; provided,
however, that if the dispute concerns the issue of termination for
“cause”
or resignation for “good reason,” the non-prevailing party shall pay for
all of the prevailing party’s costs and expenses, including legal fees
relating to such mediation or arbitration proceeding.
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13.
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Waiver
of Breach .
Any waiver of any breach of this Agreement shall not be construed
to be a
continuing waiver or consent to any subsequent breach on the part
either
of the Executive or of the Company.
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14.
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Non-Assignment;
Successors.
Neither party hereto may assign his or its rights or delegate his
or its
duties under this Agreement without the prior written consent of
the other
party; provided,
however,
that (i) this Agreement shall inure to the benefit of and be binding
upon
the successors
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| and assigns of the Company upon any sale of all or substantially all of the Company’s assets, or upon any merger, consolidation or reorganization of the Company with or into any other corporation, all as though such successors and assigns of the Company and their respective successors and assigns were the Company and (ii) this Agreement shall inure to the benefit of and be binding upon the heirs, assigns or designees of the Executive to the extent of any payments due to them hereunder. As used in this Agreement, the term “Company” shall be deemed to refer to any such successor or assign of the Company referred to in the preceding sentence. |
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15.
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Severability.
To the extent any provision of this Agreement or portion thereof
shall be
invalid or unenforceable, it shall be considered deleted there-from
and
the remainder of such provision and of this Agreement shall be unaffected
and shall continue in full force and effect.
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16.
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Counterparts.
This Agreement may be executed in one or more counterparts, each
of which
shall be deemed to be an original but all of which together will
constitute one and the same instrument.
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17.
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Governing
Law.
This Agreement shall be construed, interpreted and enforced in accordance
with the laws of the State of New York, without giving effect to
the
choice of law principles thereof.
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18.
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Entire
Agreement.
This Agreement constitutes the entire agreement by the Company and
the
Executive with respect to the subject matter hereof and except as
specifically provided herein, supersedes any and all prior agreements
or
understandings between the Executive and the Company with respect
to the
subject matter hereof, whether written or oral. This Agreement may
be amended or modified only by a written instrument executed by the
Executive and the Company.
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[SIGNATURES
ON NEXT PAGE]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of September
28, 2006.
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By:
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/s/Xxxxxxx X. Xxxxxx | |
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Name: Xxxxxxx
X. Xxxxxx
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Title: Chief
Executive Officer
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AGREED
AND ACCEPTED:
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/s/
X.X. Xxxxxxxx, III
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X.X.
Xxxxxxxx, III
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Exhibit
A
RELEASE
OF CLAIMS AND COVENANT NOT TO XXX
This
RELEASE OF CLAIMS AND COVENANT NOT TO XXX is executed and delivered
by MTM
Technologies, Inc., a New York corporation (the “Company”), to ___________ (the
“Executive”).
Pursuant
to the provisions of Section 4 of the letter agreement between the Company
and
the Executive dated __________ , 200_ (the “Agreement
”)
the
Company hereby agrees as follows:
The
Company and its affiliates release and forever discharge the Executive from,
and
covenant not to xxx or proceed against the Executive on the basis of, any and
all past or present causes of action, suits, agreements or other claims which
the Company or its affiliates have against the Executive upon or by reason
of
any matter, cause or thing whatsoever, including, but not limited to, any
matters arising out of his employment by the Company and the cessation of said
employment. This release shall not, however, constitute a waiver of any of
the Company’s rights under the Agreement. The Company hereby covenants
that it has not transferred or assigned to any person or entity any of the
claims that are subject to this release and covenant.
This
RELEASE OF CLAIMS AND COVENANT NOT TO XXX is executed by the Company and
delivered to the Executive on ____________, 20__.
Exhibit
B
This
RELEASE AGREEMENT (the “ Agreement
”)
is
made as of _________, 20__ by and between MTM Technologies, Inc., a
New York corporation (the “ Company
”),
and
________ (the “ Executive
”).
Recitals
:
A.
The Company and the Executive are parties to a Letter Agreement dated
__________, 200_ (the “Letter
Agreement”).
Capitalized terms that are not otherwise defined herein shall have the meanings
ascribed to such terms in the Letter Agreement.
B.
Effective as of ________, 20__ (the “
Separation
Date”),
the
Executive’s employment with the Company was or will be terminated.
C.
The Company is not obligated to pay the Executive any additional compensation
or
benefits other than that which has been earned as of the Executive’s Separation
Date and other than that which is set forth in the Letter Agreement. This
Agreement is the Release Agreement referenced in the Letter Agreement and the
payment of the severance benefits set forth in the Letter Agreement is
conditioned upon the execution and delivery by the Executive of this Agreement.
Agreement
:
NOW,
THEREFORE, in return for good and valuable consideration and in consideration
of
the premises and the mutual promises made hereafter, the Executive and the
Company agree as follows:
1.
Agreement.
Subject to the terms and conditions of the Letter Agreement; (a) the Company
agrees to pay the Executive the severance payments and to otherwise comply
with
the provisions of the Letter Agreement, as the case may be, and (b) the
Executive agrees to comply with the restrictive covenants in Section 10 of
the Letter Agreement and to otherwise comply with the provisions of the
Agreement.
2.
Acknowledgment.
The Executive and the Company acknowledge that the amounts to be paid pursuant
to the Letter Agreement are in excess of any earned wages or benefits due and
owing the Executive through his Separation Date.
3.
Release.
In exchange for the good and valuable consideration set forth in Section 1
of this Agreement, the Executive, on behalf of himself, his heirs, executors
and
assigns, releases, waives and discharges any and all manner of action, causes
of
action, claims, rights, charges, suits, damages, debts, demands, obligations,
attorneys’ fees, or any and all other liabilities or claims of whatsoever
nature, whether in law or in equity, known or unknown, including, but not
limited to, any claim and/or claim of damages or other relief for tort, breach
of contract, personal injury, negligence, age discrimination under The Age
Discrimination In Employment Act of 1967, any alleged violation of the Civil
Rights Acts of
1964
and
1991, the Equal Pay Act of 1963, the Rehabilitation Act of 1973, the Older
Workers Benefit Protection Act of 1990, the Americans with Disabilities Act
of
1990, the Family and Medical Leave Act of 1993, any employment discrimination
prohibited by other federal, state or local laws, including, but not limited
to,
sex, race, national origin, marital status, age, handicap, height, weight,
or
religious discrimination, and any other claims for unlawful employment practices
which the Executive has claimed or may claim or could claim in any local, state
or federal forum, against the Company, its shareholders and their respective
directors, officers, employees, successors and assigns, affiliates and all
others, as a result of the Executive’s employment at, and separation of
employment from, the Company; provided that,
the
Executive and the Company retain the right to enforce this Agreement and the
provisions of Section 4 of the Letter Agreement. The Executive hereby
covenants that he has not transferred or assigned to any person or entity any
of
the claims that are subject to this release and covenant.
4.
Irrevocable
Bar.
The parties intend that this Agreement will irrevocably bar any action or claim
whatsoever by the Executive against the Company for any resultant injuries
or
damages, whether known or unknown, sustained or to be sustained, as a result
of
any of the Company’s acts, omissions and conduct having occurred up to the
present date, including, but not limited to, the Executive’s employment with the
Company and the termination of that employment, other than those concerning
this
Agreement and the provisions of Section 4 of the Letter Agreement.
5.
Rights
or Claims Arising After the Date Hereof.
The Executive and the Company understand that the Executive is not waiving
rights or claims that may arise as a result of any act, omission or conduct
of
the Company occurring after the date this Agreement is executed.
6.
Review
of Agreement.
The Executive understands and agrees that he has read this Agreement carefully
and understands all of its terms.
7.
Advice
to Consult Attorney.
The Executive understands and agrees that he is advised to consult with an
attorney prior to executing this Agreement.
8.
Period
within which to Consider Agreement.
The Executive understands and agrees that he has been given 21 days (or more)
within which to consider this Agreement.
9.
Revocation.
The Executive understands and agrees that he may revoke this Agreement for
a
period of seven (7) calendar days following the execution of this
Agreement. Neither this Agreement nor the Company’s obligations under
Section 4 of the Letter Agreement shall be effective until this revocation
period has expired (at which time such obligations shall be effective,
retroactive to the time contemplated in the Letter Agreement). Without
limiting the generality of the foregoing, the provisions of Section 10 of
the Letter Agreement (relative to restrictive covenants) shall not be terminated
or otherwise affected by any revocation of this Agreement. The Executive
understands that any revocation, to be effective, must be in writing and
received, within seven (7) days of execution of this Agreement, by the Company
at its principal executive offices.
10.
Voluntary
Action; No Reliance.
In agreeing to sign this Agreement, the Executive is doing so completely
voluntarily and agrees that he has not relied on any oral statements or
explanations made by the Company or its representatives.
11.
Nondisclosure.
Both parties agree not to disclose the terms of this Agreement to any third
party, except as is required by law, or as is necessary for purposes of securing
counsel from either parties’ attorneys or accountants.
12.
No
Disparaging Statements.
The Executive and the Company agree not to make any disparaging statements
about
the other.
13.
Full
Accord and Satisfaction.
This Agreement is in full accord and satisfaction and compromise of the claims
of the Executive and the Company and is not to be construed as an admission
of
liability on the part of the Company.
14.
Miscellaneous.
The headings in this Agreement are inserted for convenience of reference only
and shall not be a part of or control or affect the meaning of any provision
hereof. This Agreement maybe executed in counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the
same instrument, and shall bind and shall inure to the benefit of the parties
hereto, and their respective successors and assigns. Copies (photostatic,
facsimile or otherwise) of this Agreement and signatures hereto shall be deemed
to be originals and may be relied on to the same extent as the manually-signed
originals. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
15.
Entire
Agreement, Modification.
This Agreement contains the entire agreement between the Executive and the
Company with respect to the subject matter hereof. Any modification of
this Agreement must be made in writing and signed by the Executive and an
officer specifically authorized to do so by the Board of Directors of the
Company.
[SIGNATURES
ON NEXT PAGE]
IN
WITNESS WHEREOF, the undersigned has executed this Agreement on the date first
written above.
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