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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of this 1st day of January, 1999 by and between
INTELLIGENT INFORMATION INCORPORATED, a Delaware corporation with principal
executive offices at One Dock Street, Suite 500, Stamford, Connecticut 06902
("III"), and STEPHEN G. MALONEY, residing at 1766 Shippan Avenue, Stamford,
Connecticut 06902 ("Maloney").
W I T N E S S E T H :
III is desirous of employing Maloney as President and Chief
Executive Officer of III and Maloney is desirous of serving III in such
capacities, all upon the terms and subject to the conditions hereinafter
provided.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto, intending to be legally bound,
agree as follows:
1. Employment.
III agrees to employ Maloney, and Maloney agrees to be employed by
III, upon the terms and subject to the conditions of this Agreement.
2. Term.
The employment of Maloney by III as provided in Section 1 will be
for a period of three (3) years commencing on the date hereof, unless sooner
terminated as hereinafter provided (the "Term"), and shall automatically renew
from year to year thereafter unless either party gives at least ninety (90) days
prior written notice of termination.
3. Duties; Best Efforts; Indemnification.
Maloney shall serve as President and Chief Executive Officer of III
and shall have the overall responsibility for, supervision of and control over
the day-to-day management of the business and operations of III, subject to the
general policy directions of the Board of Directors. Maloney shall also have
such other powers and perform such other duties as may from time to time be
assigned to him by the Board of Directors of III, provided that the nature of
Maloney's powers and duties so assigned shall not be inconsistent with Maloney's
positions and duties hereunder.
Maloney shall devote his business time, attention and energies to
the business and affairs of III, shall use his best efforts to advance the best
interests of III and shall not during the Term
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be actively engaged in any other business activity, whether or not such business
activity is pursued for gain, profit or other pecuniary advantage, that will
interfere with the performance by Maloney of his duties hereunder or Maloney's
availability to perform such duties or that will adversely affect, or negatively
reflect upon, III.
Subject to the provisions of III's Certificate of Incorporation and
Bylaws, each as amended from time to time, III shall indemnify Maloney to the
fullest extent permitted by the General Corporation Law of the State of
Delaware, as amended from time to time, for all amounts (including, without
limitation, judgments, fines, settlement payments, expenses and attorney's fees)
actually and reasonably incurred or paid by Maloney in connection with any
action, suit, investigation or proceeding arising out of or relating to the
performance by Maloney of services for, or the acting by Maloney as a director,
officer, or employee of, III, or any other person or enterprise at III's request
if Maloney acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of III, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. III shall use its best efforts to obtain and maintain in full force
and effect during the Term directors' and officers' liability insurance policies
providing full and adequate protection to Maloney for his capacities, provided
that the Board of Directors of III shall have no obligation to purchase such
insurance if, in its opinion, coverage is available only on unreasonable terms.
4. Place of Performance.
In connection with his employment by III, Maloney shall be based at
the principal executive offices of III, which shall be in the Stamford,
Connecticut area. If III's principal executive offices are relocated more than
fifty (50) miles from their present location without the consent of Maloney,
Maloney shall have the right prior to such relocation to terminate his
employment hereunder pursuant to Section 6(c) hereof; provided, however, that if
Maloney does not exercise such right and instead remains in the employ of III
following such relocation, III will promptly pay (or reimburse Maloney for) all
reasonable moving and moving-related expenses incurred by Maloney as a
consequence of a change of his principal residence in connection with any such
relocation of III's principal executive offices.
5. Compensation.
(a) Base Salary. III shall pay Maloney a base salary (the "Base
Salary") at a rate of not less than $150,000 per annum, payable in equal
semimonthly installments during the Term. The Board of Directors of III at least
annually will review the Base Salary and other compensation during the Term with
a view to increase thereof based upon then prevailing industry salary scales for
equivalently valued businesses for the average of the top two positions,
Maloney's performance, the performance of III, inflation and other relevant
factors.
(b) Out-of-Pocket Expenses. III shall promptly pay to Maloney the
reasonable expenses incurred by him in the performance of his duties hereunder,
including, without
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limitation, those incurred in connection with business related travel or
entertainment, or, if such expenses are paid directly by Maloney, shall promptly
reimburse him for such payment, provided that Maloney properly accounts therefor
in accordance with III's policy.
(c) Participation in Benefit Plans. During the first year of the
Term, the Board of Directors of III will enact an executive benefits plan that
includes, but is not limited to, a pension plan, profit sharing plan, stock
option plan, stock purchase plan or arrangement and health and accident plan.
Maloney shall be entitled to participate in such plan or any other employee
benefit plan or arrangement made available in the future by III to its
executives and key management employees.
(d) Life Insurance. III shall maintain a key-man life insurance
policy on the life of Maloney in the aggregate amount of at least $1,000,000,
the proceeds of which shall be payable directly to III, and an additional life
insurance policy in the aggregate of $1,000,000 (the "Repurchase Policy") which
shall be held in a trust and which proceeds shall be used for the purpose of
funding the purchase by III of the equity of III then owned by Maloney pursuant
to Section 7(a) hereof. Maloney agrees to submit to such medical examinations,
to complete such documentation and otherwise to cooperate with III as may be
required to enable III to obtain and maintain such key-man life insurance.
(e) Automobile. III shall provide Maloney with exclusive use of an
automobile for business purposes during the Term and shall pay all costs in
connection therewith. Such automobile shall be replaced periodically during the
Term, and Maloney shall have the right, at the end of the Term or at any earlier
termination thereof, to purchase the automobile he is then using at its then
depreciated book value.
(f) Vacation. Maloney shall be entitled to paid vacation days in
each calendar year determined by III from time to time, but not less than four
(4) weeks in any calendar year, prorated in any calendar year during which
Maloney is employed hereunder for less than an entire year in accordance with
the number of days in such year during which he is so employed. Maloney shall
also be entitled to all paid holidays given by III to its executives and key
management employees.
(g) Incentive Compensation. III agrees to pay Maloney a bonus (the
"Bonus"), in addition to and separate from his Base Salary and subject to the
achievement of certain mutually agreed upon performance goals, in an amount up
to thirty-five percent (35%) of his Base Salary. Maloney shall be entitled to
the Bonus on a prorata basis for partial achievement of the performance goals.
(h) Supplemental Disability Insurance. III shall maintain the
long-term disability policy currently in effect for the benefit of Maloney.
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(i) Dues and Subscriptions. III shall pay, or reimburse Maloney for,
the cost of dues and subscriptions associated with business purposes in an
amount not to exceed $5,000 annually.
6. Termination.
Maloney's employment hereunder shall be terminated upon Maloney's
death and may be terminated as follows:
(a) By III for "Cause." A termination for Cause is a termination
evidenced by a resolution adopted by a vote of a majority of the members of the
Board finding that Maloney has (i) willfully failed to comply with any of the
material terms of this Agreement, (ii) willfully and repeatedly failed to
perform his duties hereunder, (iii) engaged in gross misconduct materially
injurious to III or (iv) been convicted of, or pleaded nolo contendere to, a
felony or a crime of moral turpitude; provided, however , that Maloney shall
receive thirty (30) days' advance written notice that the Board intends to meet
to consider Maloney's termination for Cause and specifying the actions
constituting Cause, Maloney shall not have cured the actions constituting Cause
during such thirty (30) day period and Maloney shall be given a reasonable
opportunity to be heard by the Board on the issue prior to the Board's vote on
the matter.
(b) By III due to Maloney's "Disability." For purposes of this
Agreement, a termination for Disability shall occur (i) upon the thirtieth
(30th) day after the Board has provided a written termination notice to Maloney
supported by a written statement from a reputable independent physician to the
effect that Maloney shall have become so incapacitated as to be unable to
resume, within the ensuing twelve (12) months, his employment hereunder by
reason of physical or mental illness or injury, or (ii) upon rendering of a
written termination notice by the Board after Maloney has been unable to
substantially perform his duties hereunder for six (6) consecutive months or for
nine (9) months in any twelve (12) month period (exclusive of any vacation
permitted under Section 5(e) hereof) by reason of any physical or mental
illness. For purposes of this Section 6(b), Maloney agrees to make himself
available and to cooperate in any reasonable examination by a reputable
independent physician retained by III.
(c) By Maloney for "Good Reason." For purposes of this Agreement,
Good Reason shall mean (i) any circumstance that has the effect of significantly
reducing Maloney's duties or authority provided for or contemplated herein (a
"Material Change"), (ii) a breach by III of its material obligations under this
Agreement (a "Material Breach"), (iii) the relocation of the principal executive
offices of III in excess of fifty (50) miles from their present location not
consented to by Maloney, (iv) the acquisition by any person (as such term is
defined in Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended), directly or indirectly, of securities of III representing fifty
percent (50%) or more of the combined voting power of III's then outstanding
securities in a transaction to which Maloney does not consent or (v) the future
disposition by III (whether direct or indirect, by sale of assets or stock,
merger, consolidation or otherwise) of all or substantially all of its business
and/or assets in a transaction to which Maloney does not consent; provided,
however, that a Material Change or a Material Breach shall constitute Good
Reason only if Maloney has notified the Board in writing of the existence and
particulars of such Material Change or Material Breach and the Board has failed
to remedy such Material Change or Material Breach within thirty (30) days of
such notice.
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7. Compensation upon Termination.
(a) In the event of the termination of Maloney's employment as a
result of Maloney's death, III shall (i) pay to Maloney's estate his Base Salary
and Bonus through the date of his death and (ii) for the longer of eighteen (18)
months following his death or the balance of the Term (as if such termination
had not occurred) provide continuation coverage to the members of Maloney's
family under all major medical and other health, accident, life or other
disability plans and programs in which such family members participated
immediately prior to his death. In the event of Maloney's death, upon the
request of his estate or beneficiaries with six (6) months of such death, III
will be required to buy the equity of III owned by Maloney to the extent that
the proceeds of the Repurchase Policy are sufficient to purchase such equity at
its fair market value (as determined below). In the event that the proceeds of
the Repurchase Policy exceed the amount necessary to purchase all of the equity
of Maloney, the excess shall be paid directly to Maloney's estate in cash. The
fair market value of Maloney's equity shall be established in good faith by the
Board of Directors as soon as practicable after the date hereof and shall be
reviewed by the Board thereafter on an annual basis. If Maloney's estate or
beneficiaries do not exercise their rights hereunder, the proceeds of the
Repurchase Policy shall be payable directly to III.
(b) In the event of the termination of Maloney's employment by III
for Cause or by Maloney other than for Good Reason, III shall pay to Maloney his
Base Salary and accrued Bonus through the date of his termination, and Maloney
shall have no further entitlement to any other compensation or benefits from
III.
(c) In the event of the termination of Maloney's employment by III
due to Disability, III shall pay to Maloney his Base Salary and accrued Bonus
through the date of his termination. In addition, for eighteen (18) months
following any such termination, III shall (i) continue to pay Maloney the Base
Salary in effect at the time of such termination less the amount, if any, then
payable to Maloney under any disability benefits of III and (ii) provide Maloney
continuation coverage under all major medical and other health, accident, life
or other disability plans and programs in which Maloney participated immediately
prior to such termination.
(d) In the event that Maloney's employment is terminated by III
other than (i) as a result of Maloney's death or (ii) for reasons specified in
Section 6(b) or (c) or by Maloney for Good Reason, III shall continue to pay to
Maloney his Base Salary and Bonus for the greater of (x) eighteen (18) months
following any such termination or (y) the balance of the Term (as if such
termination had not occurred) and provide Maloney continuation coverage under
all major medical and other health, accident, life or other disability plans or
programs in which Maloney participated immediately prior to such termination for
the same period. Notwithstanding the foregoing, the amounts otherwise payable to
Maloney pursuant to this Section 7(d) shall be subject to reduction (but not
below zero) to the extent determined necessary by III to prevent any payments or
benefits to or for the benefit of Maloney (whether pursuant to this Agreement or
any
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other plan, arrangement or agreement) from being treated as a "parachute
payment" under Section 280G of the Internal Revenue Code of 1986, as amended.
(e) If Maloney disputes the termination of his employment by III
pursuant to Section 6(a) or 6(b) herein and such dispute results in a final
determination to the effect that III did not have a proper basis for such
termination, III shall promptly pay to Maloney all payments Maloney would have
been entitled to receive had his employment hereunder had not been improperly
terminated; provided, however, that any payments or benefits under this Section
7(e) shall be reduced by the amount of any payments or benefits provided under
any other provision of Section 7 hereof.
(f) The continuation coverage under any major medical and other
health, accident, life or other disability plans and programs for the periods
provided in Section 7(a), 7(c) and 7(d) shall be provided (i) at the expense of
III and (ii) in satisfaction of III's obligation under Section 4980B of the
Internal Revenue Code (and any similar state law) with respect to the period of
time such benefits are continued hereunder.
(g) This Section 7 sets forth the only obligations of III with
respect to the termination of Maloney's employment with III, and Maloney
acknowledges that, upon the termination of his employment, he shall not be
entitled to any payments or benefits which are not explicitly provided herein.
8. Covenant Regarding Inventions and Copyrights.
Maloney shall disclose promptly to III any and all inventions,
discoveries, improvements and patentable or copyrightable works initiated,
conceived or made by him, either alone or in conjunction with others, during the
Term and related to the business or activities of III and he assigns all of his
interest therein to III or its nominee; whenever requested to do so by III,
Maloney shall execute any and all applications, assignments or other instruments
which III shall deem necessary to apply for and obtain letters patent or
copyrights of the United States or any foreign country, or otherwise protect
III's interest therein. These obligations shall continue beyond the conclusion
of the Term with respect to inventions, discoveries, improvements or
copyrightable works initiated, conceived or made by Maloney during the Term and
shall be binding upon Maloney's assigns, executors, administrators and other
legal representatives.
9. Protection of Confidential Information.
Maloney acknowledges that he has been and will be provided with
information about, and his employment by III will, throughout the Term, bring
him into close contact with, many confidential affairs of III and its
subsidiaries, including proprietary information about costs, profits, markets,
sales, products, key personnel, pricing policies, operational methods, technical
processes and other business affairs and methods, plans for future developments
and other information not readily available to the public, all of which are
highly confidential and
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proprietary and all of which were developed by III at great effort and expense.
Maloney further acknowledges that the services to be performed by him under this
Agreement are of a special, unique, unusual, extraordinary and intellectual
character, that the business of III will be conducted throughout the world (the
"Territory"), that its services will be marketed throughout the Territory, that
III competes and will compete in all of its business activities with other
organizations which are located in any part of the Territory and that the nature
of the relationship of Maloney with III is such that Maloney is capable of
competing with III from nearly any location in the Territory. In recognition of
the foregoing, Maloney covenants and agrees during the Term and for a period of
five (5) years thereafter:
(i) That he will keep secret all confidential matters of III and
not disclose them to anyone outside of III, either during or after the Term,
except with III's prior written consent or, if during the Term, in the
performance of his duties hereunder, Maloney makes a good faith determination
that it is the best interest of III and to disclose such matters;
(ii) That he will not make use of any such confidential matters for
his own purposes or the benefit of anyone other than III; and
(iii) That he will deliver promptly to III on termination of this
Agreement, or at any time III may so request, all confidential memoranda, notes,
records, reports and other confidential documents (and all copies thereof)
relating to the business of III, which he may then possess or have under his
control.
10. Restriction on Competition, Interference and Solicitation.
In recognition of the considerations described in Section 9 hereof,
Maloney covenants and agrees that, during the Term and for a period of one (1)
year or such longer period of time during which Maloney is continuing to receive
compensation from the Company after such termination, Maloney will not, directly
or indirectly, (A) enter into the employ of, or render any services to, any
person, firm or corporation engaged in any business directly competitive with
the business of III in any part of the Territory in which III is actively
engaged in business on the date of termination; (B) engage in any such business
for his own account; (C) become interested in any such business as an
individual, partner, shareholder, creditor, director, officer, principal, agent,
employee, trustee, consultant, advisor, franchisee or in any other relationship
or capacity; or (D) interfere with III's relationship with, or endeavor to
employ or entice away from III any person, firm, corporation, governmental
entity or other business organization who or which is or was an employee,
customer or supplier of, or maintained a business relationship with, III at any
time (whether before or after the Term), or which III has solicited or prepared
to solicit; provided, however, that the provisions of clause (A) shall not be
deemed to preclude Maloney from engagement by a corporation some of the
activities of which are competitive with the business of III if Maloney's
engagement does not relate, directly or indirectly, to such competitive
business, and nothing contained in this Section 10 shall be deemed to prohibit
Maloney from acquiring or holding, solely for investment, publicly traded
securities of any
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corporation some of the activities of which are competitive with the business of
III so long as such securities do not, in the aggregate, constitute more than
five percent (5%) of any class or series of outstanding securities of such
corporation.
11. Specific Remedies.
For purposes of Sections 8, 9 and 10 of this Agreement, references
to III shall include all current and future majority-owned subsidiaries of III
and all current and future joint ventures in which III may from time to time be
involved. It is understood by Maloney and III that the covenants contained in
this Section 11 and in Sections 8, 9 and 10 hereof are essential elements of
this Agreement and that, but for the agreement of Maloney to comply with such
covenants, III would not have agreed to enter into this Agreement. III and
Maloney have independently consulted with their respective counsel and have been
advised concerning the reasonableness and propriety of such covenants with
specific regard to the nature of the business conducted by III and all interests
of III. Maloney agrees that the covenants of Sections 8, 9 or 10 hereof are
reasonable and valid. If Maloney commits a breach of any of the provisions of
Sections 8, 9 or 10 hereof, such breach shall be deemed to be grounds for
termination for Cause. In addition, Maloney acknowledges that III may have no
adequate remedy at law if he violates any of the terms hereof. Maloney therefore
understands and agrees that III shall have (i) the right to have such provisions
specifically enforced by any court having equity jurisdiction, it being
acknowledged and agreed that any such breach will cause irreparable injury to
III and that money damages will not provide an adequate remedy to III, and (ii)
the right to require Maloney to account for and pay over to III all
compensation, profits, monies, accruals, increments and other benefits
(collectively "Benefits") derived or received by Maloney as a result of any
transaction constituting a breach of any of the provisions of Sections 8, 9 or
10 and Maloney hereby agrees to account for and pay over such Benefits to III.
12. Independence, Severability and Non-Exclusivity.
Each of the rights enumerated in Sections 8, 9 or 10 hereof and the
remedies enumerated in Section 11 hereof shall be independent of the others and
shall be in addition to and not in lieu of any other rights and remedies
available to III at law or in equity. If any of the covenants contained in
Sections 8, 9 or 10, or any part of any of them, is hereafter construed or
adjudicated to be invalid or unenforceable, the same shall not affect the
remainder of the covenant or covenants or right or remedies which shall be given
full effect without regard to the invalid portions. The parties intend to and do
hereby confer jurisdiction to enforce the covenants contained in Section 8, 9 or
10 and the remedies enumerated in Section 11 upon the federal and state courts
of Connecticut sitting in Fairfield County. If any of the covenants contained in
Sections 8, 9 or 10 is held to be invalid or unenforceable because of the
duration of such provision or the area covered thereby, the parties agree that
the court making such determination shall be the power to reduce the duration
and/or area of such provision and in its reduced from said provision shall then
be enforceable. No such holding of invalidity or unenforceability in one
jurisdiction shall bar on in any way affect III's right to the relief provided
in Section 11 or
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otherwise in the courts of any other state or jurisdiction within the
geographical scope of such covenants as to breaches of such covenants in such
other respective states or jurisdictions, such covenants being, for this
purpose, severable into diverse and independent covenants.
13. Disputes. If III or Maloney shall dispute any termination of
Maloney's employment hereunder or if a dispute concerning any payment hereunder
shall exist:
(a) either party shall have the right (but not the obligation), in
addition to all other rights and remedies provided by law, to compel binding,
enforceable and non-appealable arbitration of the dispute in the City of New
York under the rules of the American Arbitration Association by giving written
notice of arbitration to the other party within thirty (30) days after notice of
such dispute has been received by the party to whom notice has been given; and
(b) if such dispute (whether or not submitted to arbitration
pursuant to Section 13(a) hereof) results in a determination that (i) III did
not have the right to terminate Maloney's employment under the provisions of
this Agreement or (ii) the position taken by Maloney concerning payments to
Maloney is correct, III shall promptly pay, or if theretofore paid by Maloney,
shall promptly reimburse Maloney for, all costs and expenses (including
reasonable attorneys' fees) reasonably incurred by Maloney in connection with
such dispute.
14. Successors; Binding Agreement.
In the event of a future disposition by III (whether direct or
indirect), by sale of assets or stock, merger, consolidation or otherwise of all
or substantially all of its business and/or assets in a transaction to which
Maloney consents, III will require any successor, by agreement in form and
substance satisfactory to Maloney, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that III would be required
to perform if no such disposition had taken place.
This Agreement and all rights of Maloney hereunder shall inure to
the benefit of, and be enforceable by, Maloney's personal or legal
representatives, executors, administrators, administrators cta, successors,
heirs, distributees, devisees and legatees. If Maloney should die while any
amount would still be payable to him hereunder if he had continued to live, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to Maloney's estate.
15. Notices.
All notices, consents and other communications required or permitted
to be given by any party hereunder shall be in writing (including telecopy or
other similar writing) and shall be given be personal delivery, certified or
registered mail, postage prepaid, or telecopy (or other similar writing) as
follows:
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To III: One Dock Street
Suite 500
Stamford, CT 06902
Attn: Chairman of the Board
Telecopy: (203) 326-7672
With a copy to: Piper & Marbury L.L.P.
1251 Avenue of the Americas
New York, New York 10020
Attn: Michael Hirschberg, Esq.
Telecopy: (212) 835-6001
To Maloney: 1766 Shippan Avenue
Stamford, CT 06902
or at such other address or telecopy number (or other similar number) as either
party may from time to time specify to the other. Any notice, consent or other
communication required or permitted to be given hereunder shall have been deemed
to be given on the date of mailing, personal delivery or telecopy or other
similar means (provided the appropriate answer back is received) thereof and
shall be conclusively presumed to have been received on the second business day
following the date of mailing or, in the case of personal delivery or telecopy
or other similar means, the day of delivery thereof, except that a change of
address shall not be effective until actually received.
16. Modifications and Waivers.
No term, provision or condition of this Agreement may be modified or
discharged unless such modification or discharge is authorized by the Board of
Directors of III and is agreed to in writing and signed by Maloney. No waiver by
either party hereto of any breach by the other party hereto of any term,
provision or condition of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
17. Entire Agreement.
This Agreement constitutes the entire understanding between the
parties hereto relating to the subject matter hereof, superseding all
negotiations, prior discussions, preliminary agreements and agreements relating
to the subject matter hereof made prior to the date hereof.
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18. Law Governing.
Except as otherwise explicitly noted, this Agreement shall be
governed by and construed in accordance with the laws of the State of
Connecticut (without giving effect to the principles of conflicts of law).
19. Invalidity.
Except as otherwise specified herein, the invalidity or
unenforceability of any term or terms of this Agreement shall not invalidate,
make unenforceable or otherwise affect any other term of this Agreement which
shall remain in full force and effect.
20. Headings.
The headings contained in this Agreement are for reference purposes
only and shall not affect the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year set forth above.
INTELLIGENT INFORMATION INCORPORATED
By: /s/ Robert M. Unnold
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Robert M. Unnold
Chairman of the Board
/s/ Stephen G. Maloney
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Stephen G. Maloney
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