Exhibit 10.48
PC CONNECTION, INC.
EMPLOYMENT AGREEMENT
In consideration of my employment and the compensation paid to me by PC
Connection, Inc. (the "Corporation"), a Delaware corporation with its principal
offices at 730 Milford Road, Route l0lA, Merrimack, New Hampshire 03054-4631,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, I agree as follows:
1. Employment Status: The Corporation hereby employs me, and I hereby
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accept employment, on the terms and conditions set forth in this Agreement. I
understand that I am employed for an indefinite term and that either the
Corporation or I may terminal the employment relationship at any time pursuant
to Section 6 hereof. My first day of employment with the Corporation will be the
date listed in Schedule A attached hereto.
2. Duties: I shall perform the duties of the job title listed on Schedule A
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and such other or additional duties and responsibilities as may be assigned to
me from time to time by the Chairman of the Corporation. As long as I am
employed by the Corporation, I shall devote my skill, energy and best efforts to
the faithful discharge of my duties as a full-time employee of the Corporation.
My principal place of employment shall be at the Corporation's headquarters. I
shall, when possible, perform my duties at such offices of the Corporation;
however, I realize that it will, at times, be necessary to perform duties at my
address on my equipment or on equipment provided by the Corporation. I agree
that I will not without the Corporation's specific written consent engage in any
employment, occupation or the provision of consulting services for a fee other
than for the Corporation or for Affiliates of the Corporation for so long as I
am employed by the Corporation. Nothing in this Agreement is intended to prevent
me from performing or providing services for an Affiliate of the Corporation, as
may be agreed upon from time to time by me and such Affiliate of the
Corporation.
3. Compensation and Benefits: I shall receive the compensation, benefits
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and other consideration described on Schedule A. Any payments or benefits in
respect of any calendar year during which I am employed for less than the entire
year shall, unless otherwise provided in the applicable plan or arrangement, be
prorated in accordance with the number of days in such calendar year during
which I am employed by the Corporation. I understand and agree that these
employee benefit plans and fringe benefits may be amended, enlarged, or
diminished by the Corporation in its discretion from time to time. The
Corporation shall provide me with descriptions of such benefit plans as are in
effect from time to time. The Corporation shall also reimburse me for reasonable
out-of-pocket disbursements which I incur in connection with the performance of
my duties hereunder, provided such expenses are accounted for in accordance with
the policies and procedures established by the Corporation. All material paid
for by the Corporation shall be the property of the Corporation.
4. Performance: I shall use my best efforts to perform my assigned duties
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diligently, loyally, conscientiously, and with skill commensurate with my
qualifications and experience, and shall comply with all rules, procedures and
standards promulgated from time to time by the Corporation with regard to
conduct of employees of the Corporation and with regard to access to and use of
the Corporation's property, equipment, and facilities. Among such rules,
procedures and standards are those governing ethical and other professional
standards for dealing with
customers, government agencies, vendors, competitors, consultants, fellow
employees, and the public-at-large; security provisions designated to protect
the Corporation's property and the personal security of the Corporation's
employees; and rules and procedures designed to protect Confidential
Information, as defined below.
5. The Corporation's Management Rights: The Corporation retains its full
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discretion to manage and direct its business affairs, including without
limitation the choice of sources, methods and degree of financing and the
adoption, amendment or modification of such research, development, production,
customer service or marketing methods and approaches as it sees fit,
notwithstanding any employee's individual interest in or expectation regarding a
particular business program or product.
6. Termination:
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(a) The employment relationship established by this Agreement may be
terminated voluntarily by me at any time, without cause, on six months' prior
written notice to the Corporation. The employment relationship established by
this Agreement may be terminated by the Corporation at any time, without cause,
effective upon delivery to me of written notice thereof.
(b) In the event that my employment hereunder is terminated by the
Corporation or by any successor in interest to the Corporation without cause,
and I am not, within thirty days following such termination, offered reasonably
comparable employment by another entity that is owned or controlled by the
Corporation or by any successor in interest to the Corporation, the Corporation
shall provide the severance benefits set forth on Schedule A to this Agreement.
The provision of severance benefits under this Agreement is subject to my full
compliance with any and all of my obligations to the Corporation or any
Affiliate of the Corporation, whether under this Agreement or otherwise. I agree
that my acceptance of such severance benefits will be in full and complete
satisfaction of any and all claims that I may have against the Corporation, its
officers, directors, employees, agents, stockholders and Affiliates. I further
agree that my receipt of such severance pay, may, at the election of the
Corporation, be conditioned upon my execution of a general release of any and
all such claims prior to my receipt of such severance pay.
(c) The Corporation may terminate my employment for cause at any time
without prior notice. Cause shall mean failure to comply with rules, standards
or procedures promulgated by the Corporation, negligent or substandard
performance of my assigned responsibilities, breach of the terms of this
Agreement, falsification of Corporation records or documents, or any act of
dishonesty or moral turpitude or any other statement, act or omission to act
made or taken in bad faith or contrary to the direction of the Board of
Directors of the Corporation that materially and adversely affects the
businesses of thc Corporation or any Affiliate of the Corporation or the owners
thereof. Termination of the employment relationship terminates any obligation on
the part of the Corporation or any of its Affiliates to make any further
payments hereunder, with the exception of any accrued but unpaid payments and
any severance pay to which I may be entitled under the terms of this Agreement.
Termination of employment by the Corporation shall be without prejudice to any
other right or remedy to which the Corporation may be entitled, at law or in
equity, under this Agreement or otherwise.
7. Agreement not to Compete with the Corporation
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(a) As long as I am employed by the Corporation, or by any Affiliate
of the Corporation, I shall not participate, directly or indirectly, in any
capacity, in any business or activity that is in competition with the business
of the Corporation or of any Affiliate of the Corporation. This section does not
limit interpretation of the scope of my obligations as set forth in Section 2,
above.
(b) For a period of three years after the termination of my employment
with the Corporation or with any Affiliate of the Corporation, so long as such
termination did not constitute or result from a substantial, material breach of
this Agreement by the Corporation, I shall not, on my own behalf, or as owner,
manager, stockholder, consultant, director, officer or employee of any business
entity, participate in the development or provision of goods or services which
are competitive with goods or services provided (or proposed to be provided) by
the Corporation or by any Affiliate of the Corporation without the express
written authorization of the Corporation's Directors. For purposes of this
Agreement, a product or service shall be deemed competitive with the Corporation
or an Affiliate of the Corporation if such product or service is offered as or
could be used as an alternative to or substitute for any product or service now
or hereafter offered by the Corporation or any Affiliate of the Corporation.
Notwithstanding the foregoing, the Corporation agrees that I may trade in the
stock of any company which is listed on a national or international stock
exchange, so long as I do not acquire more than one percent (1%) of the total
outstanding stock of any such company.
(c) For a period of three years after the termination of my employment
with the Corporation or with any Affiliate of the Corporation, so long as such
termination did not constitute or result from a substantial, material breach of
this Agreement by the Corporation, I shall not solicit, induce, attempt to hire,
or hire any employee of the Corporation, or of any Affiliate of the Corporation,
(or any other person who was employed by the Corporation or by any Affiliate of
the Corporation within one year prior to the termination of my employment), or
assist in such hiring by any other person or business entity or encourage any
such employee to terminate his or her employment with the Corporation or with
any Affiliate of the Corporation.
(d) I shall not either during the term of my employment or at any time
thereafter make any statements that are derogatory of the businesses of the
Corporation or any Affiliate of the Corporation or the owners thereof, nor shall
I make any statements, take any actions or omit to take any actions that will
harm the reputation of the businesses of the Corporation or any Affiliate of the
Corporation or the owners thereof.
(e) For purposes of this Agreement, an "Affiliate" of the Corporation
shall be deemed to be any person, persons or entity that is controlled by, under
common control with, or that controls the Corporation. The term "control"
(including, with correlative meaning, the terms "controlled by" and "under
common control with"), means the possession, directly or indirectly, of the
power to direct or cause the direction of the actions, management or policies of
a person, persons or entity, whether through the ownership of voting securities,
by contract or otherwise.
8. Nondisclosure of Confidential Information:
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While employed by the Corporation and thereafter, I shall not, other than
pursuant to my employment by and for the benefit of the Corporation or as may be
required by law, directly or indirectly, use any Confidential Information, copy
any Confidential Information, remove any Confidential Information from the
Corporation's premises, or disclose any Confidential Information to anyone
outside of the Corporation or to anyone within the Corporation who has not been
authorized to receive such information; provided, however, that in the event
that I am required by law to disclose any Confidential Information, I shall
reasonably notify the Chairman of the Corporation in writing, with a copy to the
Corporation's legal counsel, of such requirement so as to provide the
Corporation with a reasonable opportunity to object thereto and I shall take
appropriate actions to protect any such Confidential Information, including,
without limitation, obtaining a protective order or the like. On request, I
promptly shall deliver to the Corporation all Confidential Information, whether
written or contained in any other medium or computer hardware outside the
Corporation's premises, which is in my possession or under my control, and shall
return all such things promptly upon termination of my employment with the
Corporation.
The term "Confidential Information" as used throughout this Agreement shall
mean all data or information (and any tangible evidence, record or
representation thereof), whether prepared, conceived or developed by or for the
Corporation or received by the Corporation from an outside source, which is not
generally known outside of the Corporation and which is maintained in confidence
by the Corporation or by any Affiliate of the Corporation. Without limiting the
generality of the foregoing, Confidential Information shall include:
(a) identities of customers, customer lists and other customer
information, sales information, the name of any customer, employee,
prospective customer or consultant, any unpublished sales or marketing
material, plan or survey, oral or written agreements with vendors and
distributors, pricing methods, purchasing and sales contacts, and sales
figures;
(b) any idea, improvement, invention, innovation, development,
technical data, design, formula, device, pattern, concept, computer
program, computer screen layout, model, diagram, schematic, equipment,
tool, training or service manual, product specification and other technical
information, plan for a new or revised product or service, compilation of
information or work in process, and any and all revisions and improvements
relating to any of the foregoing;
(c) any business plan or opportunity; information regarding marketing
methods and plans, and plans for expansion, diversification, sales,
financing and the like, any product or development plan or specification,
any business proposal, financial record or information, or business record,
and all other non-public records and information relating to the present or
proposed business of the Corporation; and
(d) any materials that reflect the information described in
Sections8(a) through 8(c); "materials" includes, without limitation, any
documents, memoranda, notes, notebooks, reports, studies, programs, data,
drawings, schematics, ideas, diskettes, files, slides, and any material
generated by or for the Corporation, stored or contained in any medium.
Each item above is included, without limitation, as "Confidential Information"
regardless of whether it is stored in any tangible medium, or the type of medium
in which the information may be stored. Information is confidential
independently of whether it was created individually or together with others,
and independently of whether it was created during or outside of regular working
hours, so long as the information was created for the benefit of the Corporation
or by utilizing Corporation time, resources, materials or information.
Notwithstanding the foregoing, the term "Confidential Information" shall
not apply to information which the Corporation has voluntarily disclosed to the
public without restriction, or which is otherwise known to the public at large.
9. Rights in Documents and Work Product:
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(a) I agree that all originals and all copies of all manuscripts,
drawings, prints, manuals, diagrams, letters, notes, notebooks, reports, models,
and all other materials containing, representing, evidencing, recording or
constituting any Confidential Information (as defined above), however and
whenever produced (whether by myself or others) (herein referred to as
"Documents") shall be the property solely of the Corporation.
(b) I agree that all Work Product (as hereinafter defined) shall be
the property solely of the Corporation. I agree that all Work Product shall
constitute work made for hire under the copyright laws of the United States and
I hereby assign, and to the extent that such assignment cannot be made at this
time, agree to assign, to the Corporation any and all copyrights, patents, and
other proprietary rights I may have in any Work Product, together with the right
to file and/or own wholly without restrictions applications for United States
and foreign patents, trademark registrations and copyright registrations and any
patent, copyright or trademark registration issuing thereon. I agree to waive,
and hereby waive, all moral rights or proprietary rights which I may have in or
to any Work Product and, to the extent that such rights may not be waived, agree
not to assert such rights against the Corporation or its licensees, successors
or assigns.
(c) The term "Work Product" as used throughout this Agreement shall
mean any and all discoveries, inventions, ideas, concepts, research, trademarks,
service marks, good will, slogans, logos and other information, processes,
products, techniques, methods and improvements, or parts thereof conceived,
developed, or otherwise made by me alone or jointly with others, during the
period of my employment with the Corporation or with any Affiliate of the
Corporation or during the six month period next succeeding the termination of my
employment with the Corporation or with any Affiliate of the Corporation, and in
any way relating to the present or proposed products, programs or services of
the Corporation or of any Affiliate of the Corporation, or to tasks assigned to
me during the course of my employment, whether or not patentable or subject to
copyright or trademark protection, whether or not reduced to tangible form or
reduced to practice, whether or not made during my regular working hours,
whether or not made on the Corporation's premises, whether or not Confidential
Information and whether or not disclosed by me to the Corporation.
10. Obligation to Keep Records: I shall make and maintain adequate and
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current written records of all Work Product and I shall disclose all Work
Product promptly, fully and in
writing to the Corporation's Directors, or to such person as the Corporation's
Directors may designate, immediately upon development of the same and at any
time upon request.
11. Obligation to Cooperate: I will, at any time during my employment,
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or after it terminates, at the request of the Corporation, execute all documents
and perform all lawful acts which the Corporation considers necessary or
advisable to secure its rights hereunder and to carry out the intent of this
Agreement. It is understood that my reasonable out-of-pocket expenses of my
assistance incurred at the request of the Corporation will be reimbursed by the
Corporation.
12. Conflicts of Interest: I understand that my position with the
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Corporation may require me to have contact with persons outside the Corporation
such as vendors, contractors, and government agencies and officials. I agree to
adhere strictly to the Corporation's policy against giving gifts of any kind to,
or receiving gifts of any kind from, such persons. I also agree to comply with
any additional guidelines and policies that the Corporation may adopt from time
to time.
13. Return of Property
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(a) Immediately upon the cessation of my employment by the
Corporation, or earlier upon request of the Corporation, I shall return any
Documents, manuals, specifications, drawings, blueprints, reproductions,
sketches, notes, reports, proposals, business plans, computer programs, or
copies of them, other documents or materials, tools, equipment or other property
belonging to the Corporation, to any Affiliate of the Corporation or to their
customers.
(b) If requested to do so by the Corporation, I agree to sign a
Termination Certificate in which I state whether I have complied with the
requirements of this section and in which I acknowledge that certain
restrictions imposed upon me by this Agreement and by my other agreements with
the Corporation continue after termination of employment. I understand, however,
that my rights and obligations under this Agreement will continue even if I do
not sign a Termination Certificate.
14. Exceptions to this Agreement: I hereby certify that my performance
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of all the terms of this Agreement and as an employee of the Corporation does
not and will not breach any agreement or other obligation owing to any other
person, including, without limitation, obligations to keep in confidence
proprietary information, knowledge or data acquired by me in confidence or in
trust prior to my employment with the Corporation, and I will not disclose to
the Corporation or induce the Corporation to use any confidential information or
material belonging to any previous employer or others. I hereby certify that I
have identified on Schedule B attached hereto any and all continuing obligations
to any previous employers or other persons which require me not to disclose to
the Corporation any information and that I have also identified on Schedule B
any and all Confidential Information, Documents or Work Product which I claim as
my own or otherwise intend to exclude from this Agreement. I understand and
agree that once I have signed this Agreement I may not exclude any other
Confidential Information, Document or Work Product from this Agreement without
the written consent of the Chief Executive Officer of the Corporation.
15. General Provisions.
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(a) Governing Law. This Agreement shall be governed by, and
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construed and enforced in accordance with, the substantive laws of the state of
New Hampshire, without regard to its principles of conflicts of laws, and shall
be deemed to be effective as of the first day of my employment by the
Corporation.
(b) Counterparts. This Agreement may be executed in counterparts.
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(c) Entire Agreement. This Agreement contains the entire and only
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agreement between me and the Corporation respecting the subject matter hereof,
and no modification, renewal, extension, waiver or termination of this Agreement
or any of the provisions herein contained shall be binding upon me or the
Corporation unless made in writing and signed by me and an authorized officer of
the Corporation. In the event of any inconsistency between this Agreement and
any other contract between me and the Corporation, the provisions of this
Agreement shall prevail. This Agreement is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder, except as
otherwise expressly provided herein. I shall not assign any of my rights, or
delegate any of my duties, hereunder without the prior written consent of the
Chief Executive Officer of the Corporation.
(d) Waiver of Rights, Cumulative Rights. The waiver by either party
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of a breach of any provision of this Agreement shall not operate as a waiver of
any subsequent breach. No failure on the part of any party to exercise, and no
delay in exercising, any right or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or remedy by
such party preclude any other right or remedy. All rights and remedies hereunder
are cumulative and are in addition to all other rights and remedies provided by
law, agreement or otherwise.
(e) Survival. My obligations under this Agreement shall survive the
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termination of my employment with the Corporation regardless of the manner of or
reasons, if any, for such termination, and regardless of whether such
termination constitutes a breach of this Agreement or of any other agreement I
have with the Corporation. My obligations under this Agreement shall be binding
upon my heirs, executors and administrators, and the provisions of this
Agreement shall inure to the benefit of and be binding on the successors and
assigns of the Corporation.
(f) Severability. If the scope of any provision contained herein is
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too broad to permit enforcement of such provision to its full extent, then such
provision shall be enforced to the maximum extent permitted by law, and I hereby
consent and agree that such scope may be judicially modified in any proceeding
brought with respect to the enforcement of such provision. Without limiting the
generality of the foregoing, in the event that any provision of this Agreement
shall be determined to be unenforceable by reason of its extension for too great
a period of time or over too large a geographic area or over too great a range
of activities, it shall be interpreted to extend only over the maximum period of
time, geographic area or range of activities as to which it may be enforceable.
Except as otherwise provided in the preceding two sentences, if any provision of
this Agreement shall be construed to be illegal or invalid, the legality or
validity of any other provision hereof shall not be affected thereby, and any
illegal or
invalid provision of this Agreement shall be severable, and all other provisions
shall remain in full force and effect.
(g) Remedies. I recognize that money damages alone would not
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adequately compensate the Corporation in the event of my breach of this
Agreement, and I therefore agree that, in addition to all other remedies
available to the Corporation at law or in equity, the Corporation shall be
entitled to injunctive relief for the enforcement hereof. Failure by the
Corporation to insist upon strict compliance with any of the terms, covenants,
or conditions hereof shall not be deemed a waiver of such terms, covenants or
conditions.
(h) Arbitration. Any dispute arising under or in connection with
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this Agreement that is not first resolved by the parties to such dispute or
controversy shall, at the election of me or the Corporation, be determined and
settled exclusively by an arbitrator in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in effect:
provided, however, that in no event shall the election of an arbitrator pursuant
to this sentence preclude either party hereto from seeking injunctive relief in
any court of law pending the outcome of arbitration. The arbitrator shall be
selected pursuant to such Rules. The place of arbitration shall be Boston,
Massachusetts or Marlow, New Hampshire, at the election of the Corporation. An
award rendered in such arbitration shall be final and binding on the parties and
judgment may be entered on the arbitrator's award in any court having
jurisdiction. The existence of the arbitration proceeding and the outcome
thereof, including the amount of any award shall be kept confidential and not
publicly disclosed by any party to this Agreement except for such disclosure as
may be required by law.
(i) References and Titles. A reference to a Section shall mean a
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Section in this Agreement unless otherwise expressly stated. The titles and
headings herein are for reference purposes only and shall not in any manner
limit the construction of this Agreement which shall be considered as a whole.
(j) Effective Date. This Agreement shall be deemed to be effective
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as of the first day of my employment by the Corporation.
(k) Seal. This Agreement is executed under seal.
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BEFORE SIGNING, I ACKNOWLEDGE THAT I HAVE READ THIS AGREEMENT, THAT I AGREE TO
ALL OF ITS TERMS, AND THAT THIS AGREEMENT SUPERSEDES ANY PRIOR AGREEMENT ON THE
SAME SUBJECT. I FURTHER ACKNOWLEDGE THAT I HAVE BEEN GIVEN A COPY OF THIS
AGREEMENT, AND HAVE HAD AN OPPORTUNITY TO DISCUSS ANY QUESTIONS WITH THE
CORPORATION'S PERSONNEL MANAGER AND LEGAL COUNSEL AND WITH INDEPENDENT COUNSEL
OF MY CHOICE.
ACCEPTED AND DATED June 25, 2001:
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PC CONNECTION, INC. EMPLOYEE:
By:/s/ Patricia Gallup /s/ Kenneth Koppel
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Schedule A
To
Employment Agreement
Name: Kenneth Koppel
Job Title: Executive Vice Chairman and CEO
Starting Date: On or about June 26, 2001
Base Salary: $425,000 per annum, payable semi-monthly in arrears
Stock Options You shall receive stock options for 400,000 shares
of Common Stock of the Corporation at an exercise
price equal to the price quoted for such shares of
the Corporation as of the close of business on the
date on which such options are issued to you. The
said options shall vest over a four year period,
with 25% vesting on each anniversary of this
Agreement; provided, however, that in the event of
a termination other than for cause the options that
would otherwise have vested at the end of the then-
current year shall be accelerated and vest as of
the date of termination.
Bonus: You shall be entitled to such performance-based
bonus or bonuses as the Chairman, acting under the
authority of the Board of Directors, may award in
their discretion.
Benefits: You shall be entitled to benefits that are equal to
the benefits available to other senior executives
of the Corporation.
Severance: Severance benefits shall be equal to one year's
base compensation as of the date of termination of
employment provided that the termination is not for
cause. In addition, you shall be entitled to such
bonus as the Chairman, acting under the authority
of the Board of Directors, may award in their
discretion based on performance to the date of such
termination. The said benefits shall be payable
quarterly, in arrears.
Schedule B
To
Employment Agreement
EXCEPTIONS
Name: Kenneth Koppel
Job Title: Executive Vice Chairman and CEO
Description of Prior Commitments and Agreements:
Description of Excluded Confidential Information, Documents, and Work Product: