EMPLOYMENT AGREEMENT
Employment Agreement (the "Agreement") dated as of November 3, 1997, by
and between AVICENNA SYSTEMS CORPORATION, a Massachusetts corporation (the
"Company"), and Paul M. Bernard ("Employee").
R E C I T A L S
In consideration of the mutual covenants in this Agreement, the parties
agree as follows:
1. Effectiveness of Agreement and Employment.
1.1 Effectiveness of Agreement. This Agreement shall become
effective as of the date hereof.
1.2 Employment by the Company. The company hereby employs and
Employee hereby accepts such employment with the Company. Employee shall report
to, and perform such duties and services for the Company, Synetic, Inc.
("Synetic") and their respective subsidiaries and affiliates (Synetic and such
subsidiaries and affiliates collectively, "Affiliates") as may be designated
from time to time by, the President or Senior Vice President of the Company or
his designee. Employee shall use his best and most diligent efforts to promote
the interests of the Company and the Affiliates, and shall devote all of his
business time and attention to his employment under this Agreement.
1.3 Confidentiality. Employee understands and acknowledges
that in the course of his employment, he will have access to and will learn
information proprietary to the Company and its Affiliates that concerns the
operation and methodology of the Company and its Affiliates, including, without
limitation, business plans, financial information, protocols, proposals,
manuals, clinical procedures and guidelines, scientific data, computer source
codes, programs, software, knowhow and specifications, copyrights, trade
secrets, market information, Development (as hereinafter defined), data and
customer information (collectively, "Proprietary Information"). Employee agrees
that, at all times (including following termination of the Employment Period (as
hereinafter defined)), he will keep confidential and will not disclose directly
or indirectly any such Proprietary Information to any third party, except as
required to fulfill his duties hereunder, and will not misuse, misappropriate or
explain such Proprietary Information in any way. The restrictions contained
herein shall not apply to any information which Employee can demonstrate by
written record (a) was already available to the public at the time of
disclosure, or subsequently become available to the public, otherwise than by
breach of this Agreement, or (b) was the subject of a court order to disclose.
Upon any termination of the Employment Period, Employee shall immediately return
to the Company all copies of any Proprietary Information in his possession.
1.4 Restrictions on Solicitation. During the period beginning
on the date hereof and (subject to the first sentence of Section 1.9) ending on
the second anniversary of the date of cessation of the employment of the
Employee for any reason whatsoever, Employee
shall not, directly or indirectly, without the prior written approval of the
Company, solicit or contact any customer, or any prospective customer with whom
the Employee has had contact during the Employment Period, of the Company or any
of the Affiliates for any commercial pursuit that could be reasonably construed
to be in competition with the Company or any of the Affiliates, or that is
contemplated from time to time by the Company's or Synetic's business plan, or
take away or interfere or attempt to interfere with any custom, trade, business
or patronage of the Company or any of the Affiliates, or induce, or attempt to
induce, any employees, agents or consultants of or to the Company or any of the
Affiliates to do anything from which Employee is restricted by reason of this
Agreement nor shall Employee, directly or indirectly, offer or aid others to
offer employment to or interfere or attempt to interfere with any employees,
agents or consultants of the Company or any of the Affiliates.
1.5 Restrictions on Competitive Employment. During the period
beginning on the date hereof and (subject to the first sentence of Section 1.9)
ending on the second anniversary (first anniversary in the case of a termination
by the Company without Cause) of the date of cessation of the employment of the
Employee for any reason whatsoever, Employee shall not (as principal, agent,
employee, consultant or otherwise), directly or indirectly, without the prior
written approval of the Company, engage in activities for, or render services
to, any firm or business (i) engaged in direct or indirect competition with the
Company, (ii) conducting a business of the type and character engaged in by the
Company (or contemplated by the Company's business plan) at the time of
termination, (iii) developing products or services competitive with those of the
Company or (iv) conducting any other business in which Synetic or any of the
Affiliates is then engaged if Employee has engaged in activities for such
business of Synetic or such Affiliates or obtained Proprietary Information with
respect thereto (all of the businesses in clauses (i), (ii), (iii), and (iv)
collectively, "Competitive Business"). Notwithstanding the foregoing, Employee
may have an interest consisting of publicly traded securities constituting less
than 1 percent of any class of publicly traded securities in any public company
engaged in a Competitive Business so long as he is not employed by and does not
consult with, or become a director of or otherwise engage in any activities for,
such company.
1.6 Extension of Restricted Period. The Restricted Period
shall be extended by the length of any period during which Employee is in breach
of the terms of this Section 1.
1.7 Assignment of Development. All Developments that are at
any time made, conceived or suggested by Executive, whether acting alone or in
conjunction with others, during or as a result of Employee's employment under
this Agreement or any prior employment with the Company or the Affiliates, shall
be the sole and absolute property of the Company and the Affiliates, free of any
reserved or other rights of any kind on Employee's part. During the Employees's
employment and, if such Developments were made, conceived or suggested by
Employee during or as a result of Employee's employment under this Agreement or
any prior employment with the Company or the Affiliates, thereafter, Employee
shall promptly make full disclosure of any such Developments to the Company and,
at the Company's cost and expense, do all acts and things (including, among
others, the execution and delivery under oath of patent and copyright
applications and instruments of assignment) deemed by the Company to be
necessary or desirable at any time in order to effect the full assignment to the
Company and the
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Affiliates of Employee's right and title, if any, to such Developments. For
purposes of this Agreement, the term "Developments" shall mean all data,
discoveries, findings, reports, designs, plans, inventions, improvements,
methods, practices, techniques, developments, programs, concepts, and ideas,
whether or not patentable, relating to the present or planned activities, or
future activities of which Employee is aware, or the products and services of
the Company or any of the Affiliates.
1.8 Disclosure of Information. During the Employment Period,
Employee shall use his best efforts to disclose to the President and Senior Vice
President of the Company any bona fide information known by him that would have
any material negative impact on the Company or an Affiliate.
1.9 Remedies. Employee acknowledges and agrees that damages
for a breach or threatened breach of any of the covenants set forth in this
Section 1 will be difficult to determine and will not afford a full and adequate
remedy, and therefore agrees that the Company, in addition to seeking actual
damages in connection therewith, may seek specific enforcement of any such
covenant in any court of competent jurisdiction, including, without limitation,
by the issuance of a temporary or permanent injunction.
2. Compensation and Benefits.
2.1 Salary. The Company shall pay Employee for services during
the Employment Period a base salary at the annual rate of $125,000. Any and all
increases to Employee's base salary shall be determined by the Board of
Directors of the Company or the Board of Directors of Synetic (collectively, the
"Board") in its sole discretion. Such base salary shall be payable in equal
installments, no less frequently than monthly, pursuant to the Company's
customer payroll policies in force at the time of payment, less any required or
authorized payroll deductions. Employee shall be entitled to participate in any
bonus program of the Company and have the ability to earn up to 25% of his base
salary under such program based on performance and/or achievment of established
goals and objectives. Notwithstanding the foregoing, any and all bonuses under
any bonus program of the Company and and any and all discretionary bonuses shall
be determined by the Board in its sole discretion.
2.2 Benefits. During the Employment Period, Employee shall be
entitled to participate, on the same basis and at the same level as other
employees of the Company, in any group insurance, hospitalization, medical,
health and accident, disability, fringe benefit and tax-qualified retirement
plans or programs of the Company now existing or hereafter established to the
extent that he is eligible under the general provisions thereof.
2.3 Expenses. Pursuant to the Company's customary policies in
force at the time of payment, the Employee shall be promptly reimbursed, against
presentation of vouchers or receipts therefore, for all authorized expenses
properly and reasonably incurred by him on behalf of the Company or its
Affiliates in the performance of his duties hereunder.
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3. Employment Period.
Employee's employment under this Agreement shall commence as
of the date hereof, and shall terminate on the second anniversary thereof (the
"Employment Period"), unless terminated earlier pursuant to Section 4. Unless
written notice of either party's desire to terminate the Employment Period has
been given to the other party prior to the expiration of the Employment Period
(or any one-month renewal thereof contemplated by this sentence), the Employment
Period shall be automatically renewed for successive one-month periods.
4. Termination.
4.1 Termination by the Company for Cause. The Employment
Period may be terminated at any time by the Company for Cause. Upon such a
termination, the Company shall have no obligation to the Employee other than the
payment of Employee's earned and unpaid compensation to the effective date of
such termination. For purposes of this Agreement, the term "Cause" shall mean
any of the following:
1. A willful failure of the Employee to perform his duties;
2. Any willful misconduct by the Employee relating, directly
or indirectly, to the Company or any of its Affiliates, or any breach
by the Employee of any material policy of the Company or any of its
Affiliates, as reasonably determined by the Board;
3. Any breach by the Employee of any material provision
contained in Sections 1.2, 1.3, 1.4, 1.5, 1.7 and 1.8 of this
Agreement, as reasonably determined by the Board; or
4. Any willful violation by the Employee of any federal or
state law or regulation applicable to the business of the Company or
any of its Affiliates, or the Employee's commission of a common law
fraud or conviction of a felony crime involving moral turpitude.
4.2 Death. The Employment Period shall be deemed terminated by
the Company upon the death of the Employee and the Company shall have no
obligation to the Employee or the Employee's estate other than a continuation of
his base salary (at a rate equal to 100% of the rate in effect at the time of
such termination) for a period of six months following the date of termination,
payable in accordance with the third sentence of Section 2.1.
4.3 Resignation by the Employee. If the Employee terminates
his employment during the Employment Period for any reason, the Company shall
have no obligation to the Employee other than the payment of the Employee's
earned and unpaid compensation to the effective date of such termination.
4.4 Termination by the Company Without Cause. The Employment
Period may be terminated at any time by the Company without Cause. If the
Company terminates the Employment Period without Cause, the Company shall have
no obligation to the Employee other
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than a continuation of his base salary (at a rate equal to 100% of the rate in
effect at the time of such termination) for a period of six months following the
date of termination, payable in accordance with the third sentence of Section
2.1; provided, however, that such base salary continuation shall end on the
occurrence of any circumstance or event that would constitute Cause. Such base
salary continuation shall also end on the re-employment of Employee with the
Company or any of its Affiliates or employment of Employee with any other
employer if Employee's annual gross salary (base salary plus any anticipated
bonus) is equal to or greater than $125,000. If Employee's annual gross salary
from the Company, any of its Affiliates or such other employer is less than
$125,000, such base salary continuation shall be reduced by the amount of such
gross salary. In any case, in the event that the Company terminates Employee
without Cause, employee agrees to use his best and most diligent efforts to
obtain employment in which his annual gross salary would be equal to or greater
than $125,000.
4.5 Liquidated Damages. Employee acknowledges that any
payments under Section 4.4 resulting from a termination of the Employment Period
by the Company without Cause are in lieu of any and all claims that the Employee
may have against the Company or any of its Affiliates other than benefits under
the Company's employee benefit plans that by their terms survive termination of
employment and benefits under the Consolidated Omnibus Budget Reconciliation Act
of 1985, as amended, and represent liquidated damages (and not a penalty).
5. Options. Employee has previously been granted options to
purchase shares of Synetic's common stock ("Synetic Common Stock"), par value
$.01 per share, set forth on Schedule A. The terms and conditions of such
options shall be governed by the Stock Option Agreements and plans relating to
such options.
6. Notices. Any notice or communication given by either party
hereto to the other shall be in writing and personally delivered or mailed by
registered or certified mail, return receipt requested, postage prepaid, to the
following addresses:
(a) if to the Company:
Synetic, Inc.
River Drive Center 2
669 River Drive
Elmwood Park, New Jersey 07407-1361
Telecopier No.: (201) 703-3401
Attn: Chief Financial Officer
(b) if to the Employee, to the address set forth on the
signature page hereof.
Any notice shall be deemed given when actually delivered to such address, or two
days after such
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notice has been mailed or sent by overnight courier, whichever comes earliest.
Any person entitled to receive notice may designate in writing, by notice to the
other, such other address which notices to such person shall thereafter be sent.
7. Miscellaneous.
7.1 Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of its subject matter and supersedes
upon its effectiveness all other prior agreements and understandings between the
parties with respect to such subject matter.
7.2 Amendment; Waiver. This Agreement may not be amended,
supplemented, canceled or discharged, except by written instrument executed by
the party affected thereby. No failure to exercise, and no delay in exercising,
any right, power or privilege hereunder shall operate as a waiver thereof. No
waiver of any breach of any provision of this Agreement shall be deemed to be a
waiver of any preceding or succeeding breach of the same or any other provision.
7.3 Binding Effect; Assignment. The rights and obligations of
this Agreement shall bind and inure to the benefit of any successor of the
Company by reorganization, merger or consolidation, or any assignee of all or
substantially all of the Company's business and properties. Employee's rights or
obligations under this Agreement may not be assigned by the Employee, except
that the right specified in Section 4.2 shall pass upon the Employee's death to
Employee's executor or administrator.
7.4 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
7.5 Governing Law; Interpretation. This Agreement shall be
construed in accordance with and governed for all purposes by the laws and
public policy (other than conflict of laws principles) of the State of
Massachusetts applicable to contracts executed and to be wholly performed within
such State.
7.6 Further Assurances. Each of the parties agrees to execute,
acknowledge, deliver and perform, and cause to be executed, acknowledged,
delivered and performed, at any time and from time to time, as the case may be,
all such further acts, deeds, assignments, transfers, conveyances, powers of
attorney and assurances as may be reasonably necessary to carry out the
provisions or intent of this Agreement.
7.7 Severability. The parties have carefully reviewed the
provisions of this Agreement and agree that they are fair and equitable.
However, in light of the possibility of differing interpretations of law and
changes in circumstances, the parties agree that if any one or more of the
provisions of this Agreement shall be determined by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the
provisions of this Agreement shall, to the extent permitted by law, remain in
full force and effect and shall in no way be affected, impaired or invalidated.
Moreover, if any of the provisions contained in this Agreement is determined by
a court of competent jurisdiction to be excessively broad as to
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duration, activity, geographic application or subject, it shall be construed, by
limiting or reducing it to the extent legally permitted, so as to be enforceable
to the extent compatible with then applicable law.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
AVICENNA SYSTEMS CORPORATION
By:
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Name:
Title:
EMPLOYEE
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Address:
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