EXHIBIT 10.18
Employment Agreement, dated as of September 24, 1999 (the
"Effective Date"), by and between Total Network Solutions, Inc., a
New York corporation (the "Employer"), and Robert Foley, an
individual (the "Employee").
In consideration of the agreements, provisions and covenants herein
contained, Employer and Employee hereby agree as follows:
1. EMPLOYMENT AND TITLE
The Employer engages and employs the Employee, and the Employee hereby
accepts engagement and employment, as Chief Operating Officer of the Employer.
The Employee shall devote his full professional time and efforts to the proper
discharge of his duties and responsibilities under this Agreement.
2. TERM
The Employee's employment hereunder shall, unless earlier terminated in
accordance with Section 9, be for a term of four years commencing on the
Effective Date and continuing through the fourth anniversary of such date (the
"Term").
3. COMPENSATION
(a) As compensation for the performance of his duties on behalf of the
Employer, the Employee shall be compensated during the Term as follows:
(i) the Employee shall be paid a base salary of $250,000 per annum,
subject to increase at the discretion of the Compensation Committee (the
"Compensation Committee") of the Board of Directors of Employer (the
"Board"); and
(ii) a quarterly bonus of up to $31,250 as determined in the sole
discretion of the Chief Executive Officer of the Company.
The Chief Executive Officer of the Company shall meet with the Employee as
necessary to establish such goals and performance standards as the Chief
Executive Officer determines are to be taken into account in determining the
Employee's discretionary bonus awards provided for above.
The Employer shall withhold all applicable federal, state and local taxes,
social security and workers' compensation contributions and such other amounts
as may be required by law or agreed upon by the parties with respect to the
compensation payable to the Employee pursuant to this section 3(a) or otherwise
in connection with his employment by the Employer.
(b) (i) Simultaneously with the execution hereof by the parties, the
Employee will be granted options to purchase 719,046 shares of the Common Stock,
par value $0.001 per share, of the Employer ("Common Stock") pursuant to the
Employer's Amended and Restated
1998 Stock Option Plan. 94,336 such options shall be denominated as incentive
stock options and 624,710 such options shall be denominated as non-statutory
options (the "NSO's"). The terms of such grant shall be specified in further
detail in a notice of grant in the form of Exhibit A hereto and shall be subject
to the execution by the Employee of a stock option agreement substantially in
the form of Exhibit B hereto. Notwithstanding the designation of any portion of
any option granted to the Employee under this Agreement as an incentive stock
option, the provisions of the Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated thereunder may prevent some or all of such
option from being treated as incentive stock options. The Employer shall have no
liability to the Employee with respect to the tax treatment of such option or
the shares of Common Stock purchasable upon exercise thereof.
(ii) The Employer shall make a loan (the "Loan") to the Employee upon
execution of this Agreement in an amount equal to the aggregate exercise price
of the NSO's exercised by the Employee upon execution of this Agreement,
provided that the principal amount of the Loan shall not exceed $762,186.64. The
Loan shall be represented by a promissory note in the form attached hereto as
Exhibit C (the "Note"), shall bear interest at a rate of 8.25% per annum payable
upon maturity, acceleration or optional or mandatory prepayment of the Note and
shall be secured by (but recourse with respect thereto shall in no event be
limited to) the shares of Common Stock purchased upon exercise of the NSO's
exercised using the proceeds of the Loan (the "Collateral") pursuant to a
security agreement substantially in the form of Exhibit D hereto.
(iii) Until such time as the Employee's obligations with respect to the
Loan and the Note have been satisfied in full, the Employee shall maintain all
options granted to the Employee by the Employer and the shares of Common Stock
purchased or purchasable upon exercise of such options free and clear of all
liens, claims and encumbrances of any kind or nature whatsoever other than
claims and rights of the Employer as provided hereunder and in the exhibits
hereto. The Employer shall have the right to place a legend on the certificates
representing such shares of Common Stock referencing the restriction set forth
in this subparagraph (iii).
(c) The Employer shall reimburse the Employee for the following relocation
expenses:
(i) real estate commissions and other reasonable out-of-pocket costs
incurred by the Employee in connection with the sale of his principal residence
(the fair market value of which is estimated to be approximately $650,000); and
(ii) reasonable expenses of moving the Employee's personal effects to the
New York City area.
(d) The Employer shall provide the Employee with a suitable apartment in
the New York City area through December 31, 1999.
(e) The Employer shall reimburse the Employee for all normal, usual and
necessary expenses incurred by the Employee in furtherance of the business and
affairs of the
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Employer, including reasonable travel and entertainment, against receipt by the
Employer of appropriate vouchers or other evidence of the Employee's
expenditures and otherwise in accordance with such expense reimbursement policy
as may from time to time be adopted by the Board for employees.
(f) The Employee shall be entitled, during the Term, to not less than
three weeks per year of paid vacation time. The days selected for the Employee's
vacation must be mutually agreeable to the Employer and the Employee.
(g) During the Term, the Employee shall be entitled to participate in any
group insurance, hospitalization, medical, dental, health and accident,
disability or similar plan or program of Employer now existing or established
hereafter to the extent that he is eligible under the general provisions thereof
and in each other benefit program made available to executive officers of the
Employer generally.
(h) The Employee shall continue to be entitled to receive his salary and
benefits hereunder for each period during which he is unable to perform his
duties hereunder because of ill health or Disability (as defined below). Subject
to paragraphs (d), (e) and (g) of Section 9 below, the Employee must be an
employee of the Employer at the time that any compensation is due in order to
receive such compensation.
4. REPRESENTATIONS AND WARRANTIES BY THE EMPLOYEE AND EMPLOYER
The Employee hereby represents and warrants to the Employer as follows:
(a) Neither the execution and delivery of this Agreement nor the
performance by the Employee of his duties and other obligations hereunder
violate or will violate any statute, law, determination or award, or conflict
with or constitute a default under (whether immediately, upon the giving of
notice or lapse of time or both) any prior employment agreement, contract, or
other instrument to which the Employee is a party or by which he is bound.
(b) The Employee has the full right, power and legal capacity to execute
and deliver this Agreement and to perform his duties and other obligations
hereunder. This Agreement constitutes the legal, valid and binding obligation of
the Employee enforceable against him in accordance with its terms.
The Employer hereby represents and warrants to the Employee as follows:
(a) The Employer is a corporation duly organized, validly existing and in
good standing under the laws of the State of New York, with all requisite
corporate power and authority to own its properties and conduct its business in
the manner presently contemplated.
(b) The Employer has full power and authority to enter into this Agreement
and to incur and perform its obligations hereunder. This Agreement constitutes
the legal, valid
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and binding obligation of the Employer enforceable against the Employer in
accordance with its terms.
(c) The execution, delivery and performance by the Employer of this
Agreement does not conflict with or result in a breach or violation of or
constitute a default under (whether immediately, upon the giving of notice or
lapse of time or both) the certificate of incorporation or by-laws of the
Employer, or any agreement or instrument to which the Employer is a party or by
which the Employer or any of its properties may be bound or affected.
5. NON-COMPETITION
(a) The Employee understands and recognizes that his services to the
Employer are special and unique and agrees that, during the Term and for a
period of one year after the date of termination of his employment hereunder, he
shall not in any manner, directly or indirectly, on behalf of himself or any
person, firm, partnership, joint venture, corporation or other business entity
("Person"), enter into or engage in any business directly competitive with the
Employer's business of providing consulting services relating to the design and
implementation of computer networks, either as an individual for his own
account, or as a partner, joint venturer, employee, agent, consultant,
salesperson, officer, director or shareholder of a Person operating or intending
to operate within the area in which the Employer is, at the date of termination,
conducting its business (collectively, "Restricted Businesses"); provided,
however, that nothing herein will preclude the Employee from holding one percent
(1%) or less of the stock of any publicly traded company. This paragraph 5(a)
shall be null and void in the event the Employer fails to make any payment due
to the Employee pursuant to Section 9(d), 9(e) or 9(g) within five business days
after notice of such failure by the Employee to the Employer.
(b) During the Term and for one year thereafter, the Employee shall not,
directly or indirectly, without the prior written consent of the Employer (i)
interfere with, disrupt or attempt to disrupt (through solicitation or
otherwise) any past, present or prospective relationship, contractual or
otherwise, between the Employer and any of its licensors, licensees, clients,
customers, suppliers, employees or others, or solicit or induce for hire any of
the employees, agents, consultants or advisors of the Employer or any employee
who has left the employment of the Employer within one year of the termination
of said employee's employment with the Employer, (ii) solicit or accept
employment or be retained by any party who, at any time during the Term, was a
customer, client of the Employer or (iii) solicit or accept the business of any
customer or client or supplier of the Employer with respect to products or
services similar to those previously supplied by the Employer to such customer
or client.
6. DISCLOSURE AND ASSIGNMENT OF INVENTIONS
(a) During the Term, the Employee agrees that he will promptly disclose to
the Employer, or any persons designated by the Employer, all improvements,
inventions, designs, ideas, works of authorship, copyrightable works,
discoveries, trademarks, copyrights, trade secrets, formulas, processes,
structures, product concepts, marketing plans, strategies, customer lists,
information about the Employer's employees and/or Employees (including,
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without limitation, job performance of such employees and/or Employees),
techniques, blueprints, sketches, records, notes, devices, drawings, know-how,
data, whether or not patentable, patent applications, continuation applications,
continuation-in-part applications, file wrapper continuation applications and
divisional applications, made or conceived or reduced to practice or learned by
him, either alone or jointly with others, during the Term (collectively, the
"Inventions").
(b) Employee agrees that all Inventions shall be the sole property of the
Employer to the maximum extent permitted by applicable law and to the extent
permitted by law shall be "works made for hire" as that term is defined in the
United States Copyright Act (17 USCA, Section 101). The Employer shall be the
sole owner of all patents, copyrights, trade secret rights, and other
intellectual property or other rights in connection therewith. Employee hereby
assigns to the Employer all right, title and interest he may have or acquire in
all Inventions. Employee further agrees to assist the Employer in every proper
way (but at the Employer's expense) to obtain and from time to time enforce
patents, copyrights or other rights on said Inventions in any and all countries,
and to that end the Employee will execute all documents necessary to (i) apply
for, obtain and vest in the name of the Employer alone (unless the Employer
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.
(c) The Employee's obligation to assist the Employer in obtaining and
enforcing patents and copyrights for the Inventions in any and all countries
shall continue beyond the Term, but the Employer agrees to compensate the
Employee at a reasonable rate after the expiration of the Term for time actually
spent by the Employee at the Employer's request on such assistance.
7. CONFIDENTIALITY
The Employee agrees that at any time during or after the Employee's
employment with the Employer, the Employee will not, directly or indirectly,
without the prior written authorization of the Employer, disclose or make
accessible to any person or entity other than the Employer any confidential
information or material of the Employer or its affiliates or any information or
material received during the course of the Employee's employment from third
parties such as the Employer's customers and suppliers (collectively, the
"Material"). The Employee agrees, during the Employee's employment with the
Employer, not to take any such Material or reproductions thereof from the
Employer's or its clients' facilities, except as required in the performance of
the Employee's duties to the Employer. The Employee agrees immediately to return
all such Material and reproductions thereof in the Employee's possession to the
Employer upon request and in any event upon termination of Employee's employment
with the Employer. In the event that the Employee is required as a matter of law
or pursuant to any subpoena or other legal process to disclose any Material, the
Employee shall take all reasonable steps to cause the confidential treatment of
such Material and shall promptly notify
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the Employer and shall use his or her best efforts to assist the Employer in
obtaining such confidential treatment.
8. EQUITABLE RELIEF
In the event that the Employee breaches any provisions of Section 5, 6 or
7 or there is a threatened breach, then, in addition to any other rights which
the Employer may have, the Employer shall be entitled, without the posting of a
bond or other security, to injunctive relief to enforce the restrictions
contained herein. In the event that an actual proceeding is brought in equity to
enforce the provisions of Section 5, 6 or 7, the Employee shall not urge as a
defense that there is an adequate remedy at law nor shall the Employer be
prevented from seeking any other remedies which may be available.
9. TERMINATION
(a) The Employee's employment hereunder shall begin on the
Effective Date and shall continue for the period set forth in Section 2 hereof
unless sooner terminated upon the first to occur of the following events:
(i) The death of the Employee;
(ii) The Disability (as defined below) of the Employee;
(iii) Termination by the Board of Directors of the Employer
for just cause. Any of the following actions by the Employee shall
constitute just cause:
(A) Material breach by the Employee of Section 5 of this
Agreement;
(B) So long as no Change of Control (as defined below)
has occurred, material breach by the Employee of any provision
of this Agreement other than Section 5 which is not cured by
the Employee within 30 days of written notice thereof from the
Employer;
(C) negligent (or, for one year after a Change of
Control, grossly negligent) performance by the Employee of his
duties as Chief Operating Officer of the Employer, as
determined in good faith by the Board after notice to the
Employee of the alleged negligence or gross negligence and an
opportunity for the Employee to confer with the Board;
(D) Any misconduct or omission on the part of the
Employee intended to cause harm to the Employer; or
(E) The conviction of the Employee of any felony or
crime involving moral turpitude.
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(iv) Termination by the Employee for good reason. Any of the
following actions or omissions by the Employer shall constitute
good reason:
(A) Material breach by the Employer of any provision of
this Agreement which is not cured by the Employer within 30
days of written notice thereof from the Employee;
(B) Any misconduct or omission on the part of the
Employer intended to cause material harm to the Employee;
(C) A determination by the Board to move the
headquarters of the Employer more than 30 miles from New York
City;
(D) Following a Change of Control (as defined below),
either
(I) The failure of the Employer to provide the
Employee with a position, authority or duties at least
equivalent to the most significant position, authority
or duties (other than those relating to the Board of
Directors or any committee thereof) held by the Employee
during the 120 days ending on the date of the Change of
Control; or
(II) The imposition of extraordinary travel
obligations on the Employee three times in any six-month
period. For such purpose, an "extraordinary travel
obligation" shall mean any requirement by the Employer
that the Employee travel outside the New York City area
for more than ten business days in any 30-business day
period.
(b) For purposes hereof, a "Change of Control" shall be deemed to have
occurred in the event either
(i) any person or group acquires beneficial ownership of more than
50% of the then outstanding common stock of the Employer; or
(ii) a merger, consolidation or sale or other disposition of all or
substantially all of the assets of the Employer (a "Business Combination")
is consummated unless, following such Business Combination, at least a
majority of the members of the Board of Directors of the surviving entity
or transferee were members of the Board of Directors of the Employer at
the time of the initial action of the Board of Directors providing for
such Business Combination.
(c) For purposes hereof, a "Disability" of the Employee shall be deemed to
have occurred in the event (i) the Employee is absent from work or otherwise
substantially unable to perform his normal duties for a period of 30 successive
days or an aggregate of 60 days during any 12-month period because of physical
or mental disability, accident, illness or other cause other than approved
vacation or leave of absence or (ii) the Employee is deemed by a licensed
physician designated by the Employer and reasonably acceptable to the Employee
to have a permanent
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disability such that Employee will be unable to perform his duties under this
Agreement (it being understood that the Employer shall have the right to have
the Employee examined by such physician).
(d) Upon termination by Employer pursuant to either subparagraphs (i),
(ii) or (iii) of paragraph (a) above or by Employee other than pursuant to
subparagraph (iv) of paragraph (a) above, the Employee (or his estate in the
event of termination pursuant to subparagraph (i)), shall be entitled to receive
the Employee's base salary accrued but unpaid as of the date of termination.
(e) Upon termination by the Employer (other than within one year following
a Change of Control) for any reason other than as set forth in subparagraphs
(i), (ii) or (iii) of paragraph (a) above or by the Employee for any reason set
forth in clause (A), (B) or (C) of subparagraph (iv) of paragraph (a) above, the
Employer shall continue to pay the Employee, for one year following such
termination, at a per annum rate equal to 1.5 times the Employee's highest base
salary in effect during the 18 months preceding such termination in accordance
with the Employer's normal payroll practices. All unvested stock options granted
to the Employee shall become immediately vested in full upon such termination.
(f) Upon the occurrence of a Change of Control, a portion of the stock
options granted to the Employee that are unvested at the time of such Change of
Control but that would (assuming continued employment of the Employee) vest on
or prior to the first anniversary of such Change of Control shall become
immediately vested upon such Change of Control. Such acceleration shall have no
effect on the time or times at which the remainder of such stock options shall
vest in accordance with the vesting schedule applicable to such options.
(g) Upon termination by the Employer (other than as set forth in
subparagraph (i), (ii) or (iii) of paragraph (a) above) within one year
following a Change of Control or by the Employee pursuant to clause (D) of
subparagraph (iv) of paragraph (a) above within one year following a Change of
Control, the Employer shall pay the Employee, as the Employee's sole damages for
such termination, a lump sum payment equal to 1.5 times the annualized amount of
the Employee's highest base salary in effect during the 18 months preceding such
termination. In addition, all unvested stock options granted to the Employee
shall thereupon become immediately vested.
(h) It shall be a condition to the Employee's right to receive the
benefits provided for in paragraphs (d), (e) and (g) above that the Employee
shall have delivered to the Employer a general release (excluding Employee's
rights pursuant to this Agreement, any benefit plans of the Company explicitly
providing benefits subsequent to termination, rights under COBRA and rights
under stock option or comparable agreements) dated as of the date of termination
of the Employee's employment hereunder.
10. INDEMNIFICATION
The Employer shall indemnify the Employee for an a maximum aggregate
amount of up to $50,000 in expenses, costs, claims or damages incurred by the
Employee in
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connection with claims made or threatened in writing against him by Stolberg,
Meehan and Scano or its affiliates (collectively, "SMS"). The Employee
represents to the Employer that (i) the documents dated August 20, 1999 and June
, 1999 entitled "Newco Summary of Understanding" (the "Term Sheets"), the
document dated January 22, 1999 entitled "Arrangements Between Bob Foley and
SMS" (the "Outline") and a letter of intent (the "Letter of Intent") relating to
a potential acquisition encompassed by the Term Sheets are the only documents
submitted to him for signature by SMS, (ii) true and complete copies of the Term
Sheets and the Outline (in each case as shown to be redacted) have been provided
to the Employer but the Employee has not provided the Employer with a copy of
the Letter of Intent because the Employee has not retained a copy of the Letter
of Intent, (iii) the Term Sheets were never executed by the Employee, (iv) to
the Employee's knowledge, the Letter of Intent did not purport to impose any
legally binding obligations on the Employee and does not preclude the Employee
from entering into an employment agreement with the Employer, (v) any obligation
the Employee may have had to deal exclusively with SMS has expired, (vi) the
last payment received by the Employee from SMS was in the amount of $6,200 and
was received on or about August 2, 1999 for work performed during the period
ending July 22, 1999, (vii) no oral agreement concerning the subject matter of
the Term Sheets, the Outline or the Letter of Intent exists between the Employee
and SMS, (viii) no transaction between the Employee and SMS has been consummated
and (ix) no claim is pending or, except as set forth in a letter from SMS dated
September 24, 1999, a true and complete copy of which has been provided to the
Employer (as shown to be redacted), threatened against the Employee with respect
to the foregoing. The Employer shall be entitled to offset against its maximum
indemnity obligations to the Employee any damages or expenses incurred by the
Employer as a result of a breach of any of the foregoing representations.
11. NOTICES
Each notice and other communication under this Agreement shall be in
writing and shall be deemed to have been given: when delivered personally
against receipt therefor; one (1) day after being sent by Federal Express or
similar overnight delivery; or three (3) days after being mailed registered or
certified mail, postage prepaid, return receipt requested, to either party at
the address set forth below, or to such other address as such party shall give
by notice hereunder to the other party.
If to Employer:
Total Network Solutions, Inc.
545 Fifth Avenue, 14th Floor
New York, NY 10017
Att: Rami Musallam
If to Employee:
Robert Foley
307 Running Wind Lane
Maitland, FL 32751
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with a copy to
Joseph C. Coates III, Esq.
Steel Hector & Davis LLP
1900 Phillips Point West
777 South Flagler Drive
West Palm Beach, FL 33401-6198
12. SEVERABILITY OF PROVISIONS
If any provision of this Agreement shall be declared by a court of
competent jurisdiction to be invalid, illegal or incapable of being enforced in
whole or in part, the remaining conditions and provisions or portions thereof
shall nevertheless remain in full force and effect and enforceable to the extent
they are valid, legal and enforceable, and no provision shall be deemed
dependent upon any other covenant or provision unless so expressed herein.
13. ENTIRE AGREEMENT; MODIFICATION
This Agreement contains the entire agreement of the parties relating to
the subject matter hereof and supersede in their entirety any prior employment
agreements entered into between the parties, and the parties hereto have made no
agreements, representations or warranties relating to the subject matter of this
Agreement which are not set forth herein. No modification of this Agreement
shall be valid unless made in writing and signed by the parties hereto.
14. BINDING EFFECT
The rights, benefits, duties and obligations under this Agreement shall
inure to, and be binding upon, the Employer, its successors and assigns, and
upon the Employee and his legal representatives. This Agreement constitutes a
personal service agreement, and the performance of the Employee's obligations
hereunder may not be transferred or assigned by the Employee.
15. NON-WAIVER
The failure of either party to insist upon the strict performance of any
of the terms, conditions and provisions of this Agreement shall not be construed
as a waiver or relinquishment of future compliance therewith, and said terms,
conditions and provisions shall remain in full force and effect. No waiver of
any term or condition of this Agreement on the part of either party shall be
effective for any purpose whatsoever unless such waiver is in writing and signed
by such party.
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16. GOVERNING LAW
This Agreement shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York without regard to principles
of conflict of laws.
17. HEADINGS
The headings of paragraphs are inserted for convenience and shall not
affect any interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
------------------------------------
Robert Foley
TOTAL NETWORK SOLUTIONS, INC.
By:
---------------------------------
Name:
Title:
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Amendment dated as of December 29,
1999 to the Employment Agreement dated as of
September 24, 1999 (the "Employment Agreement"), by
and between Total Network Solutions, Inc., a New York
corporation (the "Employer"), and Robert Foley, an
individual (the "Employee").
WHEREAS, pursuant to the Employment Agreement, the Employee
was to be granted options to purchase 2.00% of the fully-diluted equity of the
Employer based on the Employer's projected capitalization following the
completion of the sale of its Series C Convertible Preferred Stock to Cisco
Systems, Inc. and investment funds affiliated with Morgan Stanley Dean Witter
(the "Series C Financing"); and
WHEREAS, as a consequence of certain changes in the terms of
the Series C Financing, the number of options granted to the Employee pursuant
to the Employment Agreement exceeds 2.00% of the Employer's fully-diluted
equity;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Section 3(b)(i) of the Employment Agreement is hereby
amended in its entirety to read as follows:
(b) (i) Simultaneously with the execution hereof by the
parties, the Employee will be granted options to purchase 709,065 shares of the
Common Stock, par value $0.001 per share, of the Employer ("Common Stock")
pursuant to the Employer's Amended and Restated 1998 Stock Option Plan. 94,336
such options shall be denominated as incentive stock options and 614,729 such
options shall be denominated as non-statutory options (the "NSO's").
Notwithstanding the designation of any portion of any option granted to the
Employee under this Agreement as an incentive stock option, the provisions of
the Internal Revenue Code of 1986, as amended, and the rules and regulations
promulgated thereunder may prevent some or all of such option from being treated
as incentive stock options. The Employer shall have no liability to the Employee
with respect to the tax treatment of such option or the shares of Common Stock
purchasable upon exercise thereof.
2. Except as set forth above, the Employment Agreement shall
remain unmodified and in full force and effect.
3. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York without regard to conflicts of
law principles thereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
-----------------------------
Robert Foley
TOTAL NETWORK SOLUTIONS, INC.
By: __________________________
Name:
Title:
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