Exhibit 10.11
THIS
AGREEMENT (“Agreement”) is entered into by and between SAN Holdings,
Inc., a Colorado corporation (“SANZ”), and X. Xxxxxxx Tilt (“the
Executive”).
Executive presently is
employed by ITIS Services, Inc. (“ITIS”) and is a beneficial
shareholder of ITIS.
Concurrently with the
execution of this Agreement, SANZ is acquiring all of the outstanding capital
stock of ITIS, and is issuing SANZ options in exchange for ITIS Options.
A condition to the
Agreement and Plan of Merger, dated December 10, 2001, by and among SANZ, ITIS
Acquisition Corp. and ITIS (the “Merger Agreement”) is that SANZ and
the Executive enter into this Agreement, which shall revoke and replace in its
entirety any terms of employment or employment agreement, express or implied, by
and between ITIS and Executive.
In consideration of the
premises and the mutual terms and covenants contained in this Agreement, and
other good and valuable consideration, the receipt, adequacy and sufficiency of
which hereby are acknowledged, the parties hereto, intending to be legally bound
hereby, covenant and agree as follows:
1)
Term Of Employment
| a) |
Initial Term. The initial term of this Agreement shall be three years
(unless sooner terminated under Section 5) and will commence on the closing date
of the Agreement and Plan of Merger. If the Agreement and Plan of Merger is not
completed, this Agreement shall be null and void. |
| b) |
Renewals; Notice of Non-Renewal. At the end of the initial term of this
Agreement, and on each anniversary thereafter, the term of this Agreement
automatically will be extended for one additional year unless, at least 60 days
before such anniversary, SANZ or Executive shall have delivered to the other
written notice that this Agreement will not be extended. |
2)
Duties Of The Executive
| a) |
Duties. Executive shall serve initially as Vice President, Engineering
Services, of SANZ’s operating subsidiaries with all responsibilities,
duties and authority customary to and consistent with such position, subject to
the direction and control of the CEO and Board of Directors. The Executive shall
also perform those duties as reasonably are assigned to Executive by the CEO or
COO. In addition, and without further compensation, Executive shall serve as a
director of SANZ or its subsidiaries, and as an officer of any SANZ subsidiary,
if so elected from time to time. Executive shall report to SANZ’s COO or as
otherwise directed by the CEO or COO. Executive agrees to devote substantially
all of his working time, efforts, attention and energies to the duties assigned
to him hereunder, and to perform such duties faithfully, diligently and in the
best interest of SANZ to the best of his ability. Notwithstanding the preceding
sentence, Executive may serve as a director of unaffiliated entities with the
prior approval of the Board of Directors, provided that such service does not
materially interfere with the performance of his duties for SANZ.
Executive’s service as a director of the entities identified on Exhibit A
is hereby approved. |
Executive Employment Agreement – X. Xxxxxxx Tilt
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| b) |
Place of Performance. In connection with Executive’s employment,
Executive shall be based at the principal office of SANZ’s subsidiary,
ITIS, in South Norwalk, Connecticut, or such other location as may be mutually
agreed upon by SANZ and Executive. |
3)
Compensation of the Executive.
| a) |
Annual Base Salary. As compensation for all services rendered under this
Agreement, SANZ will pay Executive an annual base salary of not less than
$160,000 until December 31, 2001 and $175,000 starting January 1, 2002 payable
in accordance with SANZ’s normal payroll practices. The annual base salary
may be increased, but not decreased, during the term of this Agreement without
the consent of Executive. |
| b) |
Short-Term Incentive Compensation Program. During the term of this
agreement, Executive shall be eligible to receive incentive compensation,
providing a bonus opportunity equal to or greater than 50% of Executive’s
annual base salary, in accordance with a compensation plan adopted by the Board
of Directors on or before January 31, 2002. |
| c) |
Long-Term Equity Incentive Compensation Program. Executive shall be
eligible to receive Stock Options under the SANZ 2001 Stock Option Plan based
upon incentive compensation guidelines to be adopted by the Board of Directors
on or before January 31, 2002. The guidelines shall provide criteria for
determining the number of Options, the exercise price, and the terms and
conditions upon which the Options will vest and become exercisable. For any
Option granted to Executive hereunder which vests based solely upon tenure, in
the event of a “Change of Control”, the Option vesting date shall
accelerate to the date of the Change of Control. For purposes of this
Agreement, a “Change in Control” of SANZ shall mean and shall be
deemed to have occurred if any of the following events shall have
occurred: |
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(i) |
Any person (as defined in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”)) is or becomes the
beneficial owner (as defined in Rule 13d-3 of the Exchange Act), directly or
indirectly, of securities representing 30% or more of the combined voting power
of SANZ’s then outstanding securities; or |
Executive Employment Agreement – X. Xxxxxxx Tilt
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(ii) |
There is consummated a merger or consolidation of SANZ with any other entity,
accompanied by a change in executive management of SANZ concurrently with or
within 180 days of such merger; or |
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(iii) |
The stockholders of SANZ approve a plan of complete liquidation or dissolution
of SANZ or there is consummated an agreement for the sale or disposition by SANZ
of all or substantially all of its assets. |
| d) |
Benefits. Executive shall be entitled to all paid holidays customarily
extended by SANZ to management employees and a minimum of four weeks paid
vacation during each year this Agreement remains in effect. Executive shall be
entitled to participate in all of SANZ’s employee benefit plans and
Executive benefits, including any retirement, 401(k), pension, profit-sharing,
stock option, insurance, hospital or other plans and benefits which now may be
in effect or which may hereafter be adopted, it being understood that Executive
shall have the same rights and privileges to participate in such plans and
benefits as any other management employee. Participation in any benefit plans
shall be in addition to the compensation otherwise provided for in this
Agreement. |
| e) |
Expenses. SANZ shall promptly reimburse Executive for all reasonable
expenses incurred in the performance of his duties hereunder following
SANZ’s customary practice. |
| f) |
Non-Exclusive Provisions. None of the provisions of this Section 3 shall
be deemed to limit additional compensation which SANZ’s Board of Directors
may, in its sole discretion, grant to Executive. |
4)
Corporate Opportunities; Non-Competition; Confidentiality, Proprietary
Information and Inventions; Covenant not to Compete.
| a) |
Corporate Opportunities. Executive will offer to SANZ any investment or
other opportunity of which he becomes aware in the areas of business in which
SANZ operates. If the Board takes no action for 90 days from the date of receipt
of the offer, or refuses the opportunity during such 90-day period, the
Executive may pursue such opportunity. |
| b) |
Permitted Investment. Notwithstanding anything else in this Section 4,
the Executive may make passive investments in companies involved in the
industries in which SANZ operates, provided any such investment does not exceed
a five percent equity interest. Executive may acquire an equity interest
exceeding five percent only if a majority of SANZ’s Board of Directors
consents thereto. |
Executive Employment Agreement – X. Xxxxxxx Tilt
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| c) |
Prohibited Activities. Except as provided in Sections 4(a) and 4(b)
hereof, during the term of this Agreement, the Executive may not participate in
any Competitive Industry (as defined below) except through and on behalf of
SANZ. For purposes of this Agreement, a “Competitive Industry” shall
mean an industry in which SANZ either is substantially engaged or has concrete
plans to engage in as a substantial part of its business in the
future. |
| d) |
Confidential Information, Proprietary Information and Inventions.
Executive promises to protect SANZ’s Confidential Information as described
in the company’s Proprietary Information and Inventions Agreement, the
terms and conditions of which are incorporated herein by this reference and
which shall survive the termination of this Agreement and the termination of
Executive’s employment with SANZ. |
| e) |
Covenant Not to Compete. During Executive’s employment with SANZ,
and for a period of two years thereafter, Executive shall not: |
|
i) |
own, manage, operate, control, be employed by, participate in, or be connected
in any manner with the ownership, management, operation or control of any
business operating in the United States which (A) is engaged in the type of
business conducted by SANZ at the time this Agreement terminates; or (B) is or
reasonably is likely to become, directly or indirectly, a material competitor of
SANZ with respect to the lines of business conducted by SANZ as of the Date of
Termination or lines of business in which, as of the Date of Termination, SANZ
has developed concrete plans to engage in the future as a substantial part of it
business. Nevertheless, Executive may own less than five percent of the
outstanding equity securities of a company that is engaged in such business if
the equity securities of such company are registered under the Securities
Exchange Act of 1934. In the event of Executive’s actual or threatened
breach of this paragraph, SANZ shall be entitled to a preliminary restraining
order and injunction restraining Executive from violating its provisions.
Nothing in this Agreement shall be construed to prohibit SANZ from pursuing any
other available remedies for such breach or threatened breach, including the
recovery of damages from Executive. |
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ii) |
induce (directly or indirectly) or attempt to persuade anyone who at the time is
a former or then-current employee, agent, manager, consultant, or other
participant in the company’s business to terminate such employment or other
relationship in order to enter into any business relationship with Executive,
any business organization in which Executive is a participant in any capacity
whatsoever, or any other business organization in competition with SANZ’s
business; or |
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iii) |
use contracts, proprietary information, trade secrets, confidential information,
customer lists, mailing lists, goodwill, or other intangible property used or
useful in connection with SANZ’s business. |
Executive Employment Agreement – X. Xxxxxxx Tilt
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| f) |
Consideration. SANZ and Executive acknowledge and agree that SANZ’s
consummation of the Merger Agreement, and its promise to pay severance to
Executive in the event SANZ terminates his employment without Cause, whether or
not such compensation becomes due under the terms of this Agreement, constitute
additional and sufficient consideration for the two year covenant not to compete
contained in this Section. |
5)
Termination of Employment. Executive’s employment hereunder may be
terminated without any breach of this Agreement only under the following
circumstances:
| a) |
By Executive. Upon the occurrence of any of the following events, this
Agreement may be terminated by the Executive by written notice to
SANZ: |
|
i) |
Good Reason. Executive may immediately terminate this Agreement for Good
Reason. For purposes of this Agreement, “Good Reason” shall mean any
of the following events: |
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(A) |
a substantial and sustained or permanent change in Executive’s level of
responsibility, which includes or entails a significant reduction in his
authority; |
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(B) |
the merger or consolidation of SANZ with another entity or an agreement to such
a merger or consolidation or any other type of reorganization, in which SANZ
applicable, is the surviving entity. |
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(C) |
if SANZ makes a general assignment for the benefit of creditors, files a
voluntary bankruptcy petition, files a petition or answer seeking a
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any law, or any petition or application for the
involuntary bankruptcy of SANZ, or other similar proceeding, has been filed in
which an order for relief is entered or which remains undismissed for a period
of thirty days or more, or SANZ seeks, consents to, or acquiesces in the
appointment of a trustee, receiver, or liquidator of SANZ or any material part
of its assets; or |
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(D) |
the sale of substantially all of SANZ’s assets; or |
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(E) |
SANZ’s material breach of any of its obligations under this Agreement; in
each case provided that within 60 days following the onset of such Good Reason
the Executive gives written notice identifying the event or change constituting
Good Reason, and SANZ does not alleviate the identified Good Reason within ten
days following its receipt of such notice from Executive. |
Executive Employment Agreement – X. Xxxxxxx Tilt
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(F) |
a Change of Control, as defined in Paragraph 3.3(4), has occurred within the
prior 90 days. |
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ii) |
Other than Good Reason. Without Good Reason, Executive may terminate this
Agreement upon at least 60 days’ prior written notice. |
| b) |
Death. Upon the death of Executive during the term of this Agreement,
SANZ shall pay base salary payments and any bonus and benefits accrued through
date of death. Additionally, the vesting date of any outstanding tenure vesting
stock options which otherwise would vest during the following 12 months, shall
accelerate to the day before death. |
| c) |
By SANZ. Upon the occurrence of any of the following events, SANZ may
terminate this Agreement by written notice to Executive: |
|
i) |
Disability. SANZ may terminate this Agreement due to Executive’s
permanent disability only in accordance with SANZ’s policy applicable to
other Executives. |
|
ii) |
For Cause. SANZ may terminate Executive’s employment at any time for
“Cause” with immediate effect upon delivering written notice to
Executive. The following, as determined by the Board of Directors in its
reasonable and good faith judgment, shall constitute Cause for termination: |
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(A) |
commission of any act involving embezzlement, theft, larceny, fraud, dishonesty
or moral turpitude; |
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(B) |
commission of any willful act having the effect of materially injuring the
interests, business or reputation of SANZ or its subsidiaries; Executive’s
intentional disregard or repeated or ongoing neglect of his duties under this
Agreement after written warning from the Executive’s immediate supervisor,
or any other material breach of Executive’s obligations under of this
Agreement of a nature other than those more particularly described above in this
clause (B) or in clause (F) of this Section 5(c)(ii); |
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(C) |
conviction of or entrance of a plea of guilty or nolo contendere to a
felony, or to a misdemeanor which has or may have a material adverse effect on
Executive’s ability to carry out his duties under this Agreement or upon
the reputation of SANZ; |
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(D) |
gross insubordination or repeated insubordination after written warning from the
Executive’s immediate supervisor; |
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(E) |
unauthorized disclosure by Executive of Confidential Information; or |
Executive Employment Agreement – X. Xxxxxxx Tilt
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(F) |
material and continuing failure by Executive to perform the duties in a quality
and professional manner, or repeated and consistent failure to be present at his
place of work, in either case where such failure continues for more than ten
days after written notice, setting forth in reasonable detail the nature of such
failure, is given to Executive. |
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iii) |
Other than Cause. SANZ shall have the right to terminate this Agreement
other than for Cause by giving at least 60 days’ prior written notice to
Executive. |
| d) |
Delivery of Notice of Termination. Any termination of Executive’s
employment by SANZ or by Executive (other than in the case of death) shall be
communicated by written notice (“Notice of Termination”) delivered to
the other party in accordance with Section 7.4 hereof. |
| e) |
Date of Termination. “Date of Termination” shall mean: |
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i) |
if Executive’s employment is terminated by his death, the date of his
death; |
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ii) |
if Executive’s employment is terminated due to non-renewal, the last day of
the preceding term of this Agreement; and |
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iii) |
if Executive terminates this Agreement for Good Reason or SANZ terminates this
Agreement other than for Cause, 60 days from the date on which Notice of
Termination is given. |
| f) |
Payments Following Termination or Non-renewal. |
|
i) |
Following the termination of this Agreement by Executive other than for Good
Reason, or by SANZ with Cause, Executive shall be entitled to compensation only
through the Date of Termination. |
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ii) |
Following termination of this Agreement by SANZ other than for Cause or due to
its notice of non-renewal, or termination by Executive for Good Reason as
defined in 5(a)(i), SANZ shall continue to pay Executive’s base salary
payments for 12 months following the Date of Termination, which shall be
considered severance pay, and shall pay to Executive any bonus accrued through
Date of Termination. Additionally, the vesting date of any outstanding tenure
vesting stock options that would, but for the termination of employment, vest
during the 12 months following the Date of Termination shall accelerate to the
day before termination. |
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iii) |
Upon temporary or permanent disability of the Executive as described in Section
5.1(c) hereof, whether or not SANZ elects to terminate this Agreement, Executive
shall receive such compensation and benefits, if any, as are payable to
Executives generally in accordance with SANZ’s policy. |
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i) |
If Executive breaches the obligations set forth in Sections 4(d) or 4(e)
(regarding confidential information and non-competition, respectively), SANZ
shall be entitled to cease any severance payments owed to Executive. In the
event SANZ made payments before it discovered a breach, SANZ shall be entitled
to recovery of amounts paid subsequent to the breach. |
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ii) |
Any termination of this Agreement shall not prejudice any other remedy to which
SANZ or Executive may be entitled, either at law, equity, or under this
Agreement. |
6)
Indemnification
| a) |
Indemnification. To the fullest extent permitted by applicable law, SANZ
agrees to indemnify, defend and hold Executive harmless from any and all claims,
actions, costs, expenses, damages and liabilities, including, without
limitation, reasonable attorneys’ fees, hereafter or heretofore arising out
of or in connection with activities of SANZ or its Executives, including
Executive, or other agents in connection with and within the scope of this
Agreement, or by reason of the fact that he is or was a director or officer or
Executive of SANZ or any affiliate of SANZ. To the fullest extent allowed by
applicable law, SANZ shall advance to Executive expenses of defending any such
action, claim or proceeding. However, SANZ shall not indemnify Executive or
defend Executive against, or hold him harmless from any claims, damages,
expenses or liabilities, including attorneys’ fees, resulting from the
willful misconduct of Executive. The duty to indemnify shall survive the
expiration or early termination of this Agreement as to any claims based on
facts or conditions that occurred or are alleged to have occurred before
expiration or termination. If at any time or from time to time Executive’s
right to indemnification pursuant to SANZ’s (or any subsidiary’s)
corporate charter or by-laws are greater than the right to indemnification
provided in this Section 6, then the right provided in such charter or by-laws
shall prevail. |
7)
General Provisions
| a) |
Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado, without regard to the
conflict of law principles thereof. |
| b) |
Entire Agreement; Supercedes Prior Agreements. This Agreement supersedes
any and all other agreements, whether oral or in writing, between the parties
with respect to the employment of the Executive by SANZ (with the exception of
portions of such agreements which have been expressly incorporated herein), and
specifically supercedes, revokes, and replaces in its entirety any employment
agreement, express or implied, by and between ITIS and Executive. Each party to
this Agreement acknowledges that no representations, inducements, promises, or
agreements, orally or otherwise, have been made by either party, or anyone
acting on behalf of any party, that are not embodied in this Agreement, and that
no agreement, statement, or promise not contained in this Agreement shall be
valid or binding. |
Executive Employment Agreement – X. Xxxxxxx Tilt
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| b) |
Successors and Assigns. This Agreement, all terms and conditions
hereunder, and all remedies arising herefrom, shall inure to the benefit of and
be binding upon SANZ, any successor in interest to all or substantially all of
the business and/or assets of SANZ (whether by merger, consolidation or
otherwise), and the heirs, administrators, successors and assigns of Executive.
Except as provided in the preceding sentence, the rights and obligations of the
parties hereto may not be assigned or transferred by either party without the
prior written consent of the other party. |
| c) |
Notices. For purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall be
deemed given if delivered by hand or overnight courier or mailed by registered
or certified mail (return receipt requested) to the parties at the following
addresses (or at such other addresses for a party as shall be specified by like
notice), and shall be deemed given on the date on which so hand-delivered, or on
the business day following the day on which sent by overnight courier, or on the
third business day following the date on which so mailed: |
If
to Executive: __________________
__________________
__________________
If
to SANZ: SAN Holdings, Inc.
Attn: CEO
000 X. Xxxxxxxxx Xx., Xxxxx 000
Xxxxxx Xxxx, XX 00000
| d) |
Severability. If any provision of this Agreement is prohibited by or is
unlawful or unenforceable under any applicable law of any jurisdiction as to
such jurisdiction, such provision shall be ineffective to the extent of such
prohibition without invalidating the remaining provisions hereof. |
| e) |
Section Headings. The section headings used in this Agreement are for
convenience only and shall not affect the construction of any terms of this
Agreement. |
| f) |
Survival of Obligations. Termination of this Agreement for any reason
shall not relieve SANZ or Executive of any obligation accruing or arising before
such termination. |
Executive Employment Agreement – X. Xxxxxxx Tilt
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| g) |
Amendments. This Agreement may be amended only by written agreement of
both SANZ and Executive. |
| h) |
Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall constitute an original but all of which, when taken
together, shall constitute only one legal instrument. This Agreement shall
become effective when copies hereof, when taken together, shall bear the
signatures of both parties hereto. It shall not be necessary in making proof of
this Agreement to produce or account for more than one such counterpart. |
IN WITNESS WHEREOF, SANZ
and the Executive have executed this Agreement to be effective as set forth
above.
“SANZ”
“EXECUTIVE”
SAN Holdings, Inc.
By:
Xxxx Xxxxxxx, CEO & President
Executive Employment Agreement – X. Xxxxxxx Tilt
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