EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of September 16, 1997, between IT PARTNERS,
INC., a Delaware corporation ("ITPI") and ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇").
WHEREAS, ITPI desires to employ Norcross and Norcross desires to accept
such employment on the terms and conditions hereinafter set forth; and
WHEREAS, the parties hereby acknowledge that the goodwill, continued
patronage, names, addresses and specific business requirements of ITPI's
clients and customers, and the designs, procedures, systems, strategies,
business methods and know-how of ITPI, having been acquired through ITPI's
efforts and the expenditure of considerable time and money, are among the
principal assets of ITPI; and
WHEREAS, the parties hereby acknowledge that as a result of the
position(s) in which Norcross will be employed, Norcross will develop special
skills and knowledge peculiar to ITPI's business, whereby she will become,
through her employment with ITPI, acquainted with the identities of the
clients and customers of ITPI, and will acquire access to the techniques of
ITPI in carrying on its business, as well as other confidential and
proprietary information; and
WHEREAS, the parties hereto acknowledge that the Covenants set forth in
Section 10 of this Agreement are necessary for the reasonable and proper
protection of ITPI's confidential and proprietary information (as defined
herein), customer relationships, and the goodwill of ITPI's business, and that
such Covenants constitute a material portion of the consideration for
Norcross's employment hereunder,
NOW, THEREFORE, in consideration of the premises and mutual promises and
covenants contained herein, and for other good and valuable consideration, the
receipt and legal sufficiency of which are hereby acknowledged, the parties
agree as follows:
1. Term. ITPI agrees to employ Norcross, and Norcross agrees to
be employed, as Chief Operating Officer for an initial term of three (3) years
commencing October 13, 1997 and ending October 12, 2000 (the "Initial Term"),
unless such employment is sooner terminated as provided herein. After the
Initial Term, thin Agreement shall renew automatically for successive one (1)
year terms. In such capacity, Norcross shall perform such duties and have
such responsibilities as are incident and customary to such offices, and shall
have such powers and perform such other duties and responsibilities as may be
assigned to her by the Board of Directors (the "Board"). During term hereof,
Norcross shall devote her full time, attention, skill and energy to the
performance of her duties under this Agreement, and she shall comply with all
reasonable professional requests of the Company.
2. Compensation.
2.1. Base Salary. In consideration of Norcross's services
hereunder, ITPI shall, beginning with the pay period commencing October 1,
1997, pay Norcross a minimum base salary of One Hundred Thirty Thousand and
00/100 Dollars ($130,000) per annum, payable in equal biweekly installments in
accordance with ITPI's normal payroll practices. Such base salary will be
reviewed annually, and may be increased (but not decreased) by ITPI's Board,
or its Executive Committee in its sole discretion.
2.2. Bonus Compensation. In addition, Norcross shall be
eligible for an annual performance bonus of up to seventy-five percent (75%)
of Norcross's base salary, based upon the achievement of certain defined
annua1 performance goals consistent with the Company's 5-year operating plan
established by the Board (including, without limitation, "threshold" goals,
"plan" goals and "override" goals), in consultation with ITPI management,
during the term hereof. At Norcross's discretion, up to fifty percent (50%)
of the annual performance bonus amount may be paid in the form of stock
options. Such options shall be granted at an exercise price equal to the then
current price per share and shall vest forty percent (40%) after two years and
twenty percent (20%) each year thereafter until fully vested.
a. Achievement by the Company of its '' threshold"
performance goa1 for a given year shall make Norcross eligible to receive a
bonus payment equal to fifteen percent (15%) of her annual base salary.
b. Achievement by the Company of its "plan"
performance goal for a given year shall make Norcross eligible to receive a
bonus payment equal to forty-five percent (45%) of her annual base salary.
c. Achievement by the Company of its "override''
performance goal for a given year shall make Norcross eligible to receive a
bonus payment equal to seventy-five percent (75%) of her annual base salary.
d. ITPI may, in its sole discretion, pay a bonus to
Norcross over and above any bonuses determined and paid to Norcross in
accordance with this Section.
3. Signing Bonus. Norcross will be paid a signing bonus of
Seventy Five Thousand Dollars ($75,000), one-third (1/3) to be paid on the
commencement of employment with ITPI, one-third (1/3) to be paid on April 15,
1998, and one-third (1/3) to be paid October 15, 1998. In the event that
Norcross voluntarily leaves employment with ITPI prior to December 31, 1998,
she must repay the signing bonus to ITPI, less any actual relocation expenses
she incurred in relocating to the Baltimore-Washington area.
4. Relocation and Moving Expenses. ITPI will pay reasonable
expenses for Norcross for up to twelve (12) months for temporary housing,
furniture rental, automobile rental, and airfare from and to Atlanta up to a
maximum of two thousand five hundred dollars ($2,500) per month. In addition,
ITPI will pay reanonable moving expenses for Norcross from Atlanta to the
Baltimore-Washington area up to a maximum of Ten Thousand Dollars ($10,000).
5. Stock Options. In addition, sixty (60) days after the start of
employment by ITPI, and in consideration of accepting employment as Chief
Operating Officer, Norcross shall be granted 50,000 stock options at the then
current price per share, and which shall vest forty percent (40%) after two
years and twenty percent (20%) each year thereafter until fully vested.
6. Fringe Benefits. During the term of this Agreement, Norcross
shall be entitled to participate in any and all fringe benefit plans, programs
and practices, including life insurance, which shall from time to time be
sponsored by ITPI for the benefit of its executive employees, and shall be
furnished with other services and perquisites appropriate to her position.
7. Vacation and Sick Leave. Norcross shall be entitled to a total
of four (4) weeks of vacation during the term hereof. Unused vacation shall
not accumulate from year to year. Norcross may take her vacation at such time
or times as shall not unreasonably interfere with the performance of her
duties under this Agreement. Norcross shall be entitled to paid sick leave
and holidays in accordance with ITPI 's announced policy for executive
employees as in effect from time to time.
8. Reimbursement of Expenses. Norcross is authorized to incur
reasonable expenses in connection with the business of ITPI including expenses
for travel and similar items. ITPI will reimburse Norcross for all previously
approved reasonable expenses upon itemized account of expenditures.
9. Illness or Disability. Norcross shall receive full
compensation for any period of illness or disability during the term of this
Agreement until such time as she receives benefits under the long term
disability insurance coverage provided by ITPI, provided, however, that such
interim period of compensation for illness or disability shall not exceed six
(6) months. Notwithstanding the foregoing, ITPI shall have the right to
terminate this Agreement without further obligation to Norcross if such
illness or disability shall be of such a character as totally to disable
Norcross from rendering any services to ITPI for a period of more than six (6)
consecutive months on giving at least thirty (30) days' written notice of
intention to do so.
10, Termination of Employment. Norcross's employment hereunder is
employment at will, and either ITPI or Norcross may terminate this Agreement
and Norcross's employment at any time, with or without cause. If ITPI
terminates the Agreement other than (i) for Cause (defined below) or (ii) due
to Norcross's Disability as described in Section 6 hereof, Norcross shall be
entitled to receive, as her exclusive remedy for such termination, the payment
of her then-current base salary for the longer of (A) six months from the date
of termination or (B) the remainder of the Term hereof (the "Severance
Benefit"). Such Severance Benefit shall be payable to Norcross in equal
monthly installments consistent with ITPI's standard payroll practices, the
first of such installments to be due within thirty (30) days after a
qualifying termination hereof. For purposes of this Agreement, "Cause" shall
mean drug or alcohol abuse, conviction of a felony or crime involving moral
turpitude, a material breach of this Agreement, or any willful or grossly
negligent act or omission by Norcross having a material adverse effect on the
business of ITPI.
11. Restrictive Covenants.
a. Noncompetition. Norcross agrees that during her
employment, and for the remainder of the Term hereof (the "Protected Period"),
she shall not: (a) engage in, manage, operate, control or supervise, or
participate in the management, operation, control or supervision of, any
business or entity that provides computer programining or consulting services,
or any other products or services competitive with those currently provided by
ITPI or those ITPI is providing as of the date of termination of Norcross's
employment with ITPI ("Competitive Activity"); or (b) have any ownership or
financial interest, directly or indirectly, in any entity that engages in
Competitive Activity, including, without limitation, as an individual,
partner, shareholder (other than as a shareholder of a publicly owned
corporation in which Norcross owns less than 2% of the outstanding shares of
such corporation), officer, director, employee, member, associate, principal,
agent, representative or consultant, and shall not in any other manner,
directly or indirectly, compete to any extent with such business of ITPI.
b. Nonsolicitation. During Norcross's employment with ITPI,
and during the Protected Period, Norcross agrees not to solicit or conduct
business, without ITPI's consent, with any client or customer of ITPI (past or
present), whether or not ITPI is doing work for such client or customer as of
the date of termination of Norcross's Employment with ITPI, as well as any
prospective client or customer of ITPI, or to contact, solicit, interfere with
or attempt to entice in any form, fashion or manner any employee of ITPI for
the purpose of inducing that employee to terminate her/her employment with
ITPI or act in any way that would be contrary to the best interests of ITPI.
c . Nondisclosure. During and after Norcross's employment
with ITPI, Norcross agrees not to disclose, or to knowingly allow any other
employee to disclose, to any other person or business entity, or use for
personal profit or gain, any confidential or proprietary information of ITPI,
regardless of whether the same shall be or may have been originated,
discovered or invented by Norcross or by Norcross in conjunction with others.
For purposes of this Agreement, the term "confidential or proprietary
information'' shall include, without limitation: the names, addresses and
telephone numbers of past, present and prospective clients or customers of
ITPI, as well as products, designs, business plans, proposed business
development, marketing strategies, customers requirements, contractual
provisions, employee capabilities, proposed marketing initiatives, pricing
methods, company earnings, computer software and reporting systems, and the
procedures, systems and businees methods of ITPI.
d. Geographic Scope of Restrictive Covenants. The geographic
area in which Norcross shall not engage in any of the prohibited activities
listed in subsections 8a and 8b hereof shall be limited to the continental
United States.
12. Remedies for Breach. Norcross hereby acknowledges and agrees
that a violation of any of the covenants see forth in Section 8 hereof (the
"Covenants") would reoult in immediate and irreparable harm to ITPI, and that
ITPI's remedies at law, including, without limitation, the award of money
damages, would be inadequate relief to ITPI for any such violation.
Therefore, any violation or threatened violation by Norcross of the Covenants
shall give ITPI the right to enforce such Covenant through specific
performance, temporary restraining order, preliminary or permanent injunction,
and other equitable relief. Such remedies shall be cumulative and in addition
to any other remedies ITPI may have, at law or in equity.
13. Notice of Subsequent Employment; Etc. Norcross agrees that she
shall, during the one (l) year period following the termination of her
employment with ITPI, give written notice to ITPI of the names and addresses
of each person, firm, corporation or other entity by whom she is employed or
for whom she acts as director, agent, representative, member, associate or
consultant. Norcross further agrees that if at any time during such one (1)
year period she conducts business on her own account, or through a proprietary
interest in any business, firm, partnership or other entity, or as contractor,
or owns any stock in a corporation, Norcross shall give written notice to ITPI
of the name, address and nature of any such business.
14. Return of ITPI Property; Assignment of Inventions.
a. Return of Property. Upon the termination of Norcross's
employment with ITPI for any reason, Norcross shall leave with or return to
ITPI all personal property belonging to ITPI ("ITPI Property") that is in
Norcross's possession or control as of the date of such termination of
employment, including, without limitation, all records, papers, drawings,
notebooks, specifications, marketing materials, software, reports, proposals,
equipment, or any other device, document or possession, however obtained,
whether or not such ITPI Property contains confidential or proprietary
information of ITPI as described in Section 8c hereof.
b. Assignment of Inventions. If at any time or times during
Norcross's employment, Norcross shall (either alone or with others) make,
conceive, discover or reduce to practice any invention, modification,
discovery, design, development, improvement, process, software program, work
of authorship, documentation, formula, data, technique, know-how, secret or
intellectual property right whatsoever or any interest therein (whether or not
patentable or registrable under copyright or similar statutes or subject to
analogous protection) (herein called "Developments") that (a) relates to the
business of ITPI or any of the products or services being developed,
manufactured or sold by ITPI or that may be used in relation therewith, (b)
results from tasks assigned her by ITPI or (c) results from the use of
premises or personal property (whether tangible or intangible) owned, leased,
or contracted for by ITPI, such Developments and the benefits thereof shall
immediately become the sole and absolute property of ITPI and its assigns, and
Norcross shall promptly disclose to ITPI (or any persons designated by it)
each such Development and hereby assigns any rights Norcross may have or
acquire in the Developments and benefits and/or rights resulting therefrom to
ITPI and its assigns without further compensation and shall communicate,
without cost or delay, and without publishing the same, all available
information relating thereto with all necessary plans and models) to ITPI.
Upon disclosure of each Development to ITPI, Norcross will,
during her employment and at any time thereafter, at the request and expense
of ITPI, sign, execute, make and do all such deeds, documents, acts and things
as ITPI and its duly authorized agents may reasonably require:
(i) to apply for, obtain and vest in the name of ITPI
alone (unless ITPI otherwise directs) letters patent,
copyrights or other analogous protection in any
country throughout the world and when so obtained or
vested to renew and restore the same; and
(ii) to defend any opposition proceedings in respect of
such applications and any opposition proceedings or
petitions or applications for revocation of such
letters patent, copyright or other analogous
protection.
In the event ITPI is unable, after reasonable effort, to secure Norcross's
signature on any letters patent, copyright or other analogous protection
relating to a Development, whether because of Norcross's physical or mental
incapacity or for any other reason, Norcross hereby irrevocably designates and
appoints ITPI and its duly authorized officers and agents as Norcross's agents
and attorneys-in-fact, to act for and in behalf of Norcross and stead to
execute and file any such application or applications and to do all other
lawfully permitted acts to further the prosecution and issuance of letters
patent, copyright or other analogous protection thereon with the same legal
force and effect as if executed by Norcross.
15. Survival. The provisions of Sections 11, 12, 13 and 14 hereof
shall survive the termination of this Agreement, regardless of the manner or
cause of such termination.
16. Effect of Agreement. This Agreement sets forth the final and
complete Agreement of the parties. It shall not be assigned by Norcross and
may not be modified except by way of a writing executed by both parties. All
the terms and provisions of this Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their successors
and assigns.
17. Governing Law. The provisions of this Agreement and any
disputes arising hereunder shall be governed by and construed in accordance
with the laws of the State of Delaware.
18. Other Agreements. Any earlier employment or stock option
agreements between Norcross and ITPI are hereby terminated and shall be no
further effect after the effective date hereof.
[The next page is the Signature Page.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their seals affixed hereto as of the day and year first
above written.
IT PARTNERS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: CEO
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (SEAL)
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
