Exhibit 10.9
[Form of]
Employment Agreement
Between
Aztec Technology Partners, Inc.
and
-------------------
____________, 1998
[Form of]
EMPLOYMENT AGREEMENT
BETWEEN
AZTEC TECHNOLOGY PARTNERS, INC.
AND
------------------------
TABLE OF CONTENTS
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Page
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1. Term of Employment.......................................................................................1
2. Title; Capacity..........................................................................................1
2.1 Authority.......................................................................................1
2.2 Attention.......................................................................................1
2.3 Base of Operations..............................................................................2
2.4 Representation and Warranty of Employee.........................................................2
2.5 Representation and Warranty of Company..........................................................2
3. Compensation and Benefits................................................................................2
3.1 Salary..........................................................................................2
3.2 Bonus...........................................................................................3
3.3 Reimbursement of Expenses.......................................................................3
3.4 Fringe Benefits; Vacation.......................................................................3
3.5 Other Plans.....................................................................................3
3.6 Stock Options...................................................................................4
4. Employment Termination...................................................................................4
4.1 By the Terms of This Agreement..................................................................4
4.2 By the Company..................................................................................4
4.3 By Death........................................................................................4
4.4 By the Employee.................................................................................4
5. Effect of Termination....................................................................................5
5.1 Termination by the Company Without Cause, by the Employee for Cause or Upon
Expiration......................................................................................5
5.2 Termination for Death...........................................................................6
5.3 Termination Upon Change in Control of the Company...............................................6
5.4 Taxes...........................................................................................7
5.5 Termination By the Company for Cause............................................................8
5.6 No Mitigation...................................................................................8
5.7 Survival........................................................................................9
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Page
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6. Restrictions on Competition..............................................................................9
6.1 Non-Compete.....................................................................................9
6.2 Investment......................................................................................9
6.3 Future Employment..............................................................................10
6.4 Severability...................................................................................10
6.5 Defenses.......................................................................................10
6.6 Fairness.......................................................................................10
7. Proprietary Information.................................................................................11
7.1 Proprietary Information........................................................................11
7.2 Exceptions.....................................................................................11
7.3 Company Property...............................................................................11
7.4 Other Agreements...............................................................................12
8. Legal and Professional Fees.............................................................................12
9. Notices.................................................................................................12
10. Pronouns................................................................................................12
11. Entire Agreement........................................................................................12
12. Amendment...............................................................................................12
13. Governing Law...........................................................................................12
14. Successors and Assigns..................................................................................13
15. Definitions.............................................................................................13
16. Miscellaneous...........................................................................................14
16.1 Waiver.........................................................................................14
16.2 Section Headings...............................................................................14
16.3 Severability...................................................................................14
16.4 Counterparts...................................................................................14
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), made this ____ day of
____________, 1998, is entered into by and between Aztec Technology Partners,
Inc., a Delaware corporation with its principal place of business at ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), and _______________,
residing at _______________________________________________ (the "Employee").
The Company desires to employ the Employee, and the Employee desires to be
employed by the Company. In consideration of the mutual covenants and promises
contained in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged by the parties to this
Agreement, the parties agree as follows:
1. Term of Employment. The Company agrees to employ the Employee, and
the Employee accepts employment with the Company, upon the terms set forth in
this Agreement, for the period commencing on _____________, 1998 (the
"Commencement Date") and, subject to the provisions of Section 4, ending on
____________, 1999, unless extended by mutual agreement (the "Employment
Period").
2. Title; Capacity.
2.1 Authority. During the Employment Period, the Employee shall serve
as _______________________ of the Company. In such capacity, the Employee shall
report to the [Chief Executive Officer ("CEO")] of the Company. During the
Employment Period, the Employee shall have such authority as is delegated to him
by the [CEO], including, without limitation, the authority and responsibility
for ______________________________________. The Employee accepts such employment
and agrees to undertake the duties and responsibilities normally inherent in
such position and such other duties and responsibilities as the [CEO] shall from
time to time reasonably assign to him consistent with his position as
___________________.
2.2 Attention. During the Employment Period, and excluding any periods
of vacation and sick leave to which the Employee is entitled, the Employee shall
devote principal attention and time during normal business hours to the
Company's business and affairs and, to the extent necessary to discharge the
responsibilities assigned to the Employee under this Agreement, use the
Employee's reasonable best efforts and abilities to carry out such
responsibilities faithfully and efficiently. It shall not be considered a
violation of the above for the Employee to (A) serve on corporate, civic or
charitable boards or committees (excluding those which would create a conflict
of interest), (B) deliver lectures, fulfill speaking engagements or teach at
educational institutions, and (C) manage personal investments, so long as such
activities do not materially interfere with the performance of the Employee's
responsibilities as an employee of the Company in accordance with this
Agreement. In the event that the Employee
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engages in any such activities, other than in his capacity as ______________,
the Employee shall not be required to pay to the Company the compensation
that he earns from engaging in such activities.
2.3 Base of Operations. The Employee's base of operations under this
Agreement shall be _____________________, although the Employee may from time to
time render services from other locations on a temporary basis. The Employee
shall not be required to relocate or render services, on other than a temporary
basis, outside of such city.
2.4 Representation and Warranty of Employee. The Employee hereby
represents and warrants to the Company that he is not aware of any presently
existing fact, circumstance or event (including, but without limitation, any
health condition or legal constraint) which would preclude or restrict him from
providing to the Company the services contemplated by this Agreement, or which
would give rise to any breach of any term or provision hereof, or which could
otherwise result in the termination of his employment agreement for cause or
good reason, pursuant to Section 4 of this Agreement.
3. Compensation and Benefits.
3.1 Salary. For all services rendered by the Employee in any capacity
under this Agreement, the Company shall pay the Employee, during the Period of
Employment, as compensation an annual base salary of not less than $__________,
which amount shall be subject to increase as provided below (the "Annual Base
Salary"). Such Annual Base Salary shall be payable in accordance with the
Company's customary payroll practices (but not less frequently than monthly).
[FOR MULTI-YEAR AGREEMENTS ONLY: The Company agrees to review the Employee's
Annual Base Salary on at least an annual basis no later than 120 days after the
end of each fiscal year commencing in _____ to consider an increase (but not
decrease) in such Annual Base Salary for the fiscal year. Any such increase
shall be effective as of the first day of the fiscal year and shall be at the
sole discretion of the Board. Any increase in the Annual Base Salary shall not
limit or reduce any other obligation of the Company under this Agreement.]
3.2 Bonus. [FOR MULTI-YEAR AGREEMENTS ONLY: For each fiscal year of
the Company,] The Employee shall be entitled to receive a cash bonus with an
annual target award opportunity of up to _____ percent of Annual Base Salary
awarded to the Employee by the Board or by a Committee designated by the Board.
Each annual bonus shall be paid in a single cash lump sum not later than 90 days
after the end of the fiscal year or portion thereof for which the bonus is
awarded, unless the Employee elects in writing, before the beginning of the
fiscal year for which the annual bonus is to be awarded, to defer receipt of the
annual bonus. Notwithstanding anything in this Agreement to the contrary, in the
event of any termination of the Employee's employment with the Company for any
reason whatsoever (whether by the Employee or the Company), any unpaid bonus
payable in accordance with this Section 3.2 for the fiscal year preceding the
fiscal year in which such termination occurs shall be paid to the Employee in
accordance with this Section 3.2.
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3.3 Reimbursement of Expenses. The Company shall pay or reimburse the
Employee for all business travel, entertainment and other expenses incurred or
paid by the Employee in connection with, or related to, the performance of his
duties, responsibilities or services under this Agreement. Such expenses shall
be appropriately submitted and approved in accordance with the Company's
policies applicable to senior executives, as well as applicable Federal and
state tax record keeping requirements.
3.4 Fringe Benefits; Vacation. The Employee shall participate in and
shall receive during the Period of Employment employee benefit plans and fringe
benefits of the Company in accordance with the most favorable plans, practices,
programs and policies of the Company, as presently in effect or as they may be
modified or added to by the Company from time to time, including, without
limitation, plans providing retirement benefits, medical insurance, life
insurance, disability insurance and accidental death or dismemberment insurance.
The paid vacation entitlement of the Employee shall be ____ weeks per year.
3.5 Other Plans. Nothing in this Agreement shall be construed as
making the Employee ineligible to participate in and receive awards or grants
under any equity incentive plan of the Company in accordance with the terms
thereof in which the Employee would otherwise be eligible to participate.
3.6 Stock Options. The parties contemplate that promptly upon
execution of this Agreement, the Employee shall be granted options for the
purchase of _____ shares of the Company's common stock, $0.001 par value per
share. The options shall vest 1/3 on the date of grant, 1/3 12 months after the
date of grant, and 1/3 24 months after the date of grant. The option exercise
price will be equal to the fair market value of the Company's stock on the date
of grant.
4. Employment Termination. The employment of the Employee by the Company
pursuant to this Agreement shall terminate upon the occurrence of any of the
following:
4.1 By the Terms of This Agreement. Expiration of the Employment
Period in accordance with Section 1.
4.2 By the Company. At the election of the Company, for cause, upon
written notice by the CEO to the Employee. For the purposes of this Section 4.2,
"cause" for termination shall be deemed to exist solely upon (a) the occurrence
of willful and continued failure of the Employee to substantially perform the
Employee's reasonable duties under this Agreement (other than as a result of
physical or mental illness or injury) which is material, related to his duties
as an employee of the Company, and continues for 30 days after the CEO delivers
to the Employee a written demand for substantial performance that specifically
identifies the manner in which the CEO believes that the Employee has not
substantially performed the Employee's duties, or (b) the conviction of the
Employee of, or the entry of a pleading of guilty or nolo contendere by the
Employee to, any crime involving moral turpitude or any felony that results in
material and demonstrable damage to the business or reputation of the Company.
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4.3 By Death. Thirty (30) days after the death of the Employee.
4.4 By the Employee. At the election of the Employee, upon not less
than 30 days' prior written notice to the Company given within 60 days after a
good faith determination by the Employee that any of the following has occurred:
(a) material and adverse diminution of the Employee's duties, authority,
position, compensation or aggregate benefits, including, without limitation,
failure to cause the Employee to retain the position of _______________________
of the Company; (b) the assignment to the Employee of any duties inconsistent
with Section 2 of this Agreement; (c) the Company's purported termination of the
Employee's employment for cause other than in accordance with the requirements
of this Agreement; or (d) any other material breach of this Agreement by the
Company. In addition, the Employee may terminate his employment with the
Company, for any reason, during the 30-day period immediately following the
one-year anniversary of a Change in Control, as defined below.
5. Effect of Termination.
5.1 Termination by the Company Without Cause, by the Employee for
Cause or Upon Expiration.
(a) Severance. In the event the Employee's employment is
terminated by the Company without cause or by the Employee pursuant to Section
4.4 (each, a "Qualifying Termination") or the Company does not offer to renew
this Agreement upon expiration of the Employment Period, the Company shall pay
to the Employee (i) a pro rata portion of the Severance Bonus Amount (as defined
below) for the fiscal year in which such termination is effective determined by
multiplying the Severance Bonus Amount by a fraction (the "Pro Rata Fraction"),
the numerator of which shall be the number of days between the first day of the
fiscal year and the date on which the termination is effective and the
denominator of which shall be 365, plus (ii) an amount equal to the Annual Base
Salary through _________. For purposes of this Agreement, the Severance Bonus
Amount for a fiscal year shall equal the average of the bonuses paid to the
Employee pursuant to Section 3.2 of this Agreement for the fiscal years, if any,
immediately preceding such fiscal year or $_________, whichever is greater.
(b) Severance Period; Timing of Payments. The Company shall make
the severance payment called for by Section 5.1(a)(i) within 30 days of the date
the Employee's termination is effective, and shall make the payments called for
by Section 5.1(a)(ii) to the Employee at a monthly rate equal to one-twelfth of
the Annual Base Salary. All severance payments provided for in this Section 5.1
shall be made in semi-monthly installments in arrears on the 15th day and the
last day of each fiscal month. Such installments shall be appropriately adjusted
in the event a severance payment is due for any partial fiscal month.
(c) Severance Benefits. Following any Qualifying Termination or
if this Agreement is not renewed for any reason at the end of the Employment
Period, the Company
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shall continue to pay for or provide to the Employee the fringe benefits as may
have been provided to the Employee in accordance with Section 3.4 immediately
prior to such Qualifying Termination or termination (subject to changes in the
terms of health, disability or life insurance coverage by the provider as may be
applicable to the Company as a whole) for a period ending on the earliest of (i)
the date of the Employee's employment by a third party on a substantially
full-time basis if the Employee is eligible to receive comparable life, medical,
dental, health, and accident or disability insurance benefits under another
employer-provided plan, on terms at least as favorable to the Employee and his
family, (ii) ____________, or (iii) the death of the Employee but in the case of
the Employee's death his health benefits shall be continued for the benefit of
his wife for a one year period following his death. The Employee shall notify
the Company promptly following his acceptance of any offer of employment by a
third party. The Employee shall be under no obligation to seek other employment
following any Qualifying Termination, and any amounts he earns in any other
employment shall not reduce or offset the severance payments or other amounts
due hereunder except for the fringe benefits specifically referred to in this
Section 5.1(c).
5.2 Termination for Death. In the event the Employee's employment is
terminated by death pursuant to Section 4.3 (a "Section 4.3 Termination"), the
Company shall pay or provide to the estate of the Employee the compensation
(including, without limitation, in lieu of the bonuses and payments provided for
in Sections 3.2, the Pro Rata Fraction of the Severance Bonus Amount for the
fiscal year in which such termination is effective, which shall be paid in a
one-time lump sum payment within 30 days of the last day of the Employee's
actual employment by the Company) and benefits payable or provided to him under
Section 3 through the last day of his actual employment by the Company.
5.3 Termination Upon Change in Control of the Company.
(a) Change in Control Severance Payment. In the event the
Employee's employment is terminated without cause or pursuant to Section 4.4 of
this Agreement within 24 months following a Change in Control (as defined below)
of the Company, the Company shall make a one-time lump sum severance payment
(the "Change in Control Severance Payment") to the Employee in an amount equal
to the product of _____ multiplied by his Annual Base Salary. In such event, the
Employee shall not be entitled to the payments to which he would otherwise be
entitled pursuant to Section 5.1(a), but shall continue to be entitled to
benefits provided by the Company pursuant to and in accordance with Section
5.1(e).
(b) Parachute Payments. The Change in Control Severance Payment
payable under this Section 5.3 shall be made without regard to whether the
deductibility of such payment (or any other "parachute payments," as that term
is defined in Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code"), to or for the Employee's benefit) would be limited or precluded by Code
Section 280G.
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(c) Change in Control. A "Change in Control" of the Company shall
occur or be deemed to have occurred in the event that:
(i) any "person", as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") (a
"Person") other than the Company, any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, or any corporation
owned directly or indirectly by the stockholders of the Company in substantially
the same proportion as their ownership of stock of the Company, acquires
"beneficial ownership" (as defined in Rule 13d-3 under the Exchange Act) of
securities of the Company representing fifty percent (50%) or more of the
combined voting power of the Company's then outstanding securities (other than
through an acquisition of securities directly from the Company);
(ii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than (A) a merger
or consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than fifty percent (50%) of the combined voting power of
the voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or (B) a merger or consolidation
effected to implement a recapitalization of the Company (or similar transaction)
in which no "person" (as hereinabove defined) acquires more than fifty percent
(50%) of the combined voting power of the Company's then outstanding securities;
or
(iii) the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets.
5.4 Taxes.
(a) Gross-Up Payment. In the event that the Company undergoes a
"Change in Ownership or Control" (as defined below), the Company shall, within
30 days after the date of such Change in Ownership or Control determine and
notify the Employee (with reasonable detail regarding the basis for its
determinations) (i) which of the payments or benefits due to the Employee
following such Change in Ownership or Control constitute "Contingent
Compensation Payments" (as defined below), (ii) the amount, if any, of the
excise tax (the "Excise Tax") payable pursuant to Code Section 4999, by the
Employee with respect to such Contingent Compensation Payment, and (iii) the
amount of the Gross-Up Payment (as defined below) due to the Employee with
respect to such Contingent Compensation Payment. Within 30 days after delivery
of such notice to the Employee, the Employee shall deliver a response to the
Company (the "Employee Response") stating either (A) that he agrees with the
Company's determination pursuant to the preceding sentence, or (B) that he
disagrees with such determination, in which case he shall indicate which payment
and/or benefits should be
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characterized as a Contingent Compensation Payment, the amount of the Excise Tax
with respect to such Contingent Compensation Payment and the amount of the
Gross-Up Payment due to the Employee with respect to such Contingent
Compensation Payment. The amount and characterization of any item in the
Employee Response shall be final; provided, however, that in the event that the
Employee fails to deliver an Employee Response on or before the required date,
the Company's initial determination shall be final. Within ninety (90) days
after the due date of each Contingent Compensation Payment to the Executive, the
Company shall pay to the Employee, in cash, the Gross-Up Payment with respect to
such Contingent Compensation Payment, in the amount determined pursuant to this
Section 5.4(a).
(b) Definitions. For purposes of this Section 5.4, the following
terms shall have the following respective meanings:
(i) "Change in Ownership or Control" shall mean a change in
the ownership or effective control of the Company or in the ownership of a
substantial portion of the assets of the Company determined in accordance with
Code Section 280G(b)(2).
(ii) "Contingent Compensation Payment" shall mean any
payment (or benefit) in the nature of compensation that is made or supplied to a
"disqualified individual" (as defined in Code Section 280G(c)) and that is
contingent (within the meaning of Code Section 280G(b)(2)(A)(i)) on a Change in
Ownership or Control of the Company.
(iii) "Gross-Up Payment" shall mean an amount equal to the
sum of (i) the amount of the Excise Tax payable with respect to a Contingent
Compensation Payment and (ii) the amount necessary to pay all additional taxes
imposed on (or economically borne by) the Employee (including the Excise Taxes,
state and federal income taxes and all applicable withholding taxes)
attributable to the receipt of such Gross-Up Payment. For purposes of the
preceding sentence, all taxes attributable to the receipt of the Gross-Up
Payment shall be computed assuming the application of the maximum tax rates
provided by law.
5.5 Termination By the Company for Cause. In the event the Employee's
employment is terminated by the Company for cause, the Company shall pay to the
Employee his Annual Base Salary to and including the effective date of such
termination.
5.6 No Mitigation. Except as provided with respect to fringe benefits
in Section 5.1(e), the severance benefits payable to the Employee under this
Agreement shall not be reduced by payments received by the Employee from a
subsequent employer.
5.7 Survival. The provisions of Sections 5, 6 and 7 shall survive
the termination of this Agreement.
6. Restrictions on Competition.
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6.1 Non-Compete. For so long as the Employee continues to be employed
by the Company and/or any other entity owned by or affiliated with the Company
and thereafter for a period of one (1) year, the Employee shall not, directly or
indirectly, for himself or on behalf of or in conjunction with any other person,
company, partnership, corporation, business, group, or other entity (each, a
"Person"):
(i) engage, as an officer, director, shareholder, owner, partner,
member, joint venturer, or in a managerial capacity, whether as an employee,
independent contractor, consultant, advisor, or sales representative, in any
business selling any products or services in direct competition with the
Company, within one thousand five hundred (1,500) miles of any location where
the Company conducts business (the "Territory");
(ii) call upon any Person who is, at that time, within the
Territory, an employee of the Company for the purpose or with the intent of
enticing such employee away from or out of the employ of the Company;
(iii) call upon any Person who or that is, at that time, or has
been, within one (1) year prior to that time, a customer of the Company within
the Territory for the purpose of soliciting or selling products or services in
direct competition with the Company within the Territory; or
(iv) on the Employee's own behalf or on behalf of any competitor,
call upon any Person as a prospective acquisition candidate who or that, during
the Employee's employment by the Company was either called upon by the Company
as a prospective acquisition candidate or was the subject of an acquisition
analysis conducted by the Company.
6.2 Investment. The foregoing covenants shall not be deemed to
prohibit the Employee from acquiring as an investment not more than one percent
of the capital stock of a competing business, whose stock is traded on a
national securities exchange or through the automated quotation system of a
registered securities association.
6.3 Future Employment. It is agreed further that, in the event that
the Employee shall cease to be employed by the Company and enters into a
business or pursues other activities that, at such time, are not in competition
with the Company, Employee shall not be chargeable with a violation of this
Section 6 if the Company subsequently enters the same (or a similar) competitive
business or activity or commences competitive operations within one hundred
(100) miles of the Employee's new business or activities. In addition, if the
Employee has no actual knowledge that his actions violate the terms of this
Section 6, the Employee shall not be deemed to have breached the restrictive
covenants contained in this Agreement if, promptly after being notified by the
Company of such breach, the Employee ceases the prohibited actions.
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6.4 Severability. The covenants in this Section 6 are severable and
separate, and the unenforceability of any specific covenant shall not affect the
provisions of any other covenant. If any provision of this Section 6 relating to
the time period or geographic area of the restrictive covenants shall be
declared by a court of competent jurisdiction to exceed the maximum time period
or geographic area, as applicable, that such court deems reasonable and
enforceable, said time period or geographic area shall be deemed to be, and
thereafter shall become, the maximum time period or largest geographic area that
such court deems reasonable and enforceable and this Agreement shall
automatically be considered to have been amended and revised to reflect such
determination.
6.5 Defenses. All of the covenants in this Section 6 shall be
construed as an agreement independent of any other provision of this Agreement,
and the existence of any claim or cause of action of the Employee against the
Company, whether predicated on this Agreement or otherwise, shall not constitute
a defense to the enforcement or the Company of such covenants; provided, that
upon the failure of the Company to make any payments required under this
Agreement, the Employee may, upon thirty (30) days' prior written notice to the
Company, waive his right to receive any such compensation pursuant to this
Agreement and engage in any activity prohibited by the covenants of this Section
6. It is specifically agreed that the period of one (1) year stated at the
beginning of this Section 6, during which the agreements and covenants of the
Employee made in this Section 6 shall be effective, shall be computed by
excluding from such computation any time during which Employee is in violation
of any provision of this Section 6.
6.6 Fairness. The Employee has carefully read and considered the
provisions of this Section 6, and, having done so, agrees that the restrictive
covenants in this Section 6 impose a fair and reasonable restraint on the
Employee and are reasonably required to protect the interests of the Company,
and its officers, directors, employees, and stockholders.
7. Proprietary Information. The Employee's relationship with the Company is
one of high trust and confidence and in the course of his employment by the
Company he will have access to and contact with Proprietary Information. The
Employee agrees that he will not, during the Employment Period or at any time
thereafter, disclose to others, or use for the benefit of others, any
Proprietary Information, except in the good faith performance of his duties
under this Agreement.
7.1 Proprietary Information. For purposes of this Agreement,
Proprietary Information shall mean all information (whether or not patentable
and whether or not copyrightable) owned, possessed or used by the Company,
including, without limitation, any invention, formula, formulation, vendor
information, customer information, apparatus, equipment, trade secret, process,
research, report, technical data, know-how, computer program, software, software
documentation, hardware design, technology, marketing or business plan,
forecast, unpublished financial statement, budget, license, price, cost and
employee list that is
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communicated to, learned of, developed or otherwise acquired by the Employee in
the course of his employment by the Company.
7.2 Exceptions. The Employee's obligations under this Section 7 shall
not apply to any information that (i) is or becomes known to the general public
under circumstances involving no breach by the Employee of the terms of this
Section 7, (ii) is generally disclosed to third parties by the Company without
restriction on such third parties, (iii) is approved for release by written
authorization of the Board or an authorized employee of the Company, (iv) is
communicated to the Employee by a third party under no duty of confidentiality
with respect to such information to the Company or another party, or (v) is
required to be disclosed by the Employee to comply with applicable laws,
governmental regulations, or court order, provided that the Employee provides
prior written notice of such disclosure to the Company and an opportunity for
the Company to object to such disclosure and further provided that the Employee
cooperates with the Company and takes reasonable and lawful actions requested by
the Company (the out-of-pocket costs of which shall be paid by the Company) to
avoid and/or minimize the extent of such disclosure.
7.3 Company Property. Upon termination of this Agreement or at any
other time upon request by the Company, the Employee shall promptly deliver to
the Company all records, files, memoranda, notes, designs, data, reports, price
lists, customer lists, drawings, plans, computer programs, software, software
documentation, sketches, laboratory and research notebooks and other documents
(and all copies or reproductions of such materials in his possession or control)
belonging to the Company.
7.4 Other Agreements. The Company from time to time may have
agreements with other persons or with the United States Government, or agencies
thereof, that impose obligations or restrictions on the Company regarding
inventions made during the course of work under such agreements or regarding the
confidential nature of such work. If the Employee's duties under this Agreement
will require disclosures to be made to him subject to such obligations and
restrictions, the Employee agrees to be bound by them and to take all action
necessary to discharge the obligations of the Company under such agreements.
8. Notices. All notices required or permitted under this Agreement shall be
in writing and shall be deemed effective upon personal delivery or three days
after deposit in the United States Post Office, by registered or certified mail,
postage prepaid, return receipt requested, addressed to the other party at the
address shown above and, in the case of any notice to the Employee, with a copy
to ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., ▇▇▇▇ and ▇▇▇▇ LLP, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address or addresses of which either party
shall notify the other in accordance with this Section 8.
9. Pronouns. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural, and vice
versa.
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10. Entire Agreement. This Agreement and the Employee Options constitute
the entire agreement between the parties and supersede all prior agreements and
understandings, whether written or oral, relating to the subject matter of this
Agreement and the Employee Options.
11. Amendment. This Agreement may be amended or modified only by a written
instrument executed by both the Company and the Employee.
12. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the Commonwealth of Massachusetts,
without giving effect to conflict of laws provisions.
13. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of both parties and their respective successors and assigns;
provided, however, that this Agreement may not be assigned by the Company except
to a corporation or other person or entity reasonably acceptable to the Employee
and with which or into which the Company may be merged, consolidated or
otherwise combined or which may succeed to all or substantially all of its
assets or business and which assumes in a writing satisfactory in form and
substance to Employee all of the obligations of the Company under this Agreement
and under all Employer Stock Option Plans. The obligations of the Employee are
personal and shall not be assigned by him.
14. Definitions. For purposes of this Agreement each of the following
defined terms is defined in the Section of this Agreement indicated below:
Defined Term Section
------------ -------
Agreement Introduction
Annual Base Salary 3.1
Beneficial Ownership 5.3(c)(i)
Board 2
Cause for Termination 4.2
Change in Control 5.3(c)
Change in Control Severance Payment 5.3(a)
Change in Ownership 5.4
Code 5.3(b)
Commencement Date 1
Company Introduction
Contingent Compensation Payments 5.4
Employee Introduction
Employee Response 5.4
Employer Stock Option Plan 3.6
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Defined Term Section
------------ -------
Employment Period 1
Exchange Act 5.3(c)(i)
Excise Taxes 5.4
Failure of the Employee to Perform 4.2
Gross-up Payment 5.4
Incumbent Board 5.3(c)(ii)
Merger Agreement 6.7
Parachute Payments 5.3(b)
Person 6.1
Proprietary Information 7.1
Pro Rata Fraction 5.1(a)
Qualifying Termination 5.1(a)
Section 4.3 Termination 5.2
Territory 6.1
15. Miscellaneous.
15.1 Waiver. No delay or omission by either party in exercising any
right under this Agreement shall operate as a waiver of that or any other right.
A waiver or consent given by either party on any one occasion shall be effective
only in that instance and shall not be construed as a bar or waiver of any right
on any other occasion.
15.2 Section Headings. The captions of the sections of this Agreement
are for convenience of reference only and in no way define, limit or affect the
scope or substance of any section of this Agreement.
15.3 Severability. In case any provision of this Agreement shall be
invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
15.4 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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AZTEC TECHNOLOGY PARTNERS, INC.
By:
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Title:
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EMPLOYEE:
By:
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Title:
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