Exhibit 10.2
[EXECUTION
ORIGINAL]
EMPLOYMENT
AGREEMENT
COMPUTER SOFTWARE INNOVATIONS,
INC.
THIS
AGREEMENT (this “Agreement”)
is made and entered into and shall be effective as of the 1
st
day of March, 2009,
by and between Computer Software Innovations, Inc. , a
Delaware company (“Company”), and Thomas P.
Clinton (“Employee”).
W I T N E S S E T
H:
WHEREAS, Company is engaged in a highly competitive
business providing software and technology solutions primarily to
public sector markets in (the “Business” or
“Competitive Business”); and
WHEREAS, Company has expended and will expend a
significant amount of time, money and resources to develop its
relationships and preserve goodwill with its customers and to
develop and maintain its trade secrets and other Confidential
Information (as defined below), which, if disclosed or misused,
could be harmful to the Business; and
WHEREAS, Employee has agreed to accept employment with
Company, and Company desires to employ Employee, who, through
access to Company’s trade secrets and other Confidential
Information, by close and meaningful contact with Company’s
employees and other personnel as well as with various customers,
potential customers and vendors, and by efficient and successful
management of certain of Company’s internal operations, will
increase the value and profitability of Company; and
WHEREAS, if Employee were to leave the Company’s
employment, Company, in all fairness, would need certain
protections in order to prevent Company’s competitors from
gaining an unfair competitive advantage over Company or otherwise
diverting customers or goodwill from Company, and to prevent misuse
or misappropriation of Company’s trade secrets and other
Confidential Information; and
WHEREAS, the Employment Agreement between Employee and
Company, dated as of February 11, 2005, expired effective as
of the date of this Agreement pursuant to notice from the Company,
and Employee and Company wish to enter into this new and separate
Agreement.
NOW, THEREFORE,
for and in consideration of the
mutual covenants, promises and agreements herein contained, the
employment of Employee by Company in the capacity, for the term and
with the compensation and benefits hereinafter provided, including
a lump sum payment in the amount of $7,875, less required
withholdings and deductions (the “Signing Payment”),
and other good and valuable consideration, the receipt, adequacy
and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
1. Employment
.
(a) Company hereby agrees to employ
Employee as Senior Vice President of Strategic Relationships and
Employee hereby accepts employment with Company, for the purposes
and upon the terms and conditions hereinafter set forth, such
employment to be subject to the terms and conditions of this
Agreement and such rules and regulations as may be established by
the Chief Executive Officer (“CEO”) or the Board of
Directors of the Company (including any committees thereof, the
“Board”) from time to time.
THIS AGREEMENT IS SUBJECT TO
ARBITRATION UNDER
THE SOUTH CAROLINA UNIFORM
ARBITRATION ACT .
(b) Subject to the control of the
CEO and the Board, Employee hereby agrees to perform such services,
duties and responsibilities as are set forth in the job description
for Company’s Senior Vice President of Strategic
Relationships and as are customary for similar positions of a
company of similar size engaged in a similar business as Company,
and such other services, duties and responsibilities as may be
assigned to Employee by the CEO or the Board from time to time.
Employee further agrees that throughout Employee’s employment
with Company, Employee shall (i) faithfully render such
services, duties and responsibilities; (ii) devote
Employee’s entire business time, good faith, best efforts,
ability, skill and attention to the Business and the promotion of
the interests of Company; and (iii) follow and act in
accordance with all rules, policies and procedures of Company,
including, but not limited to, working hours and such other rules,
policies and procedures as may be established by Company from time
to time. Employee shall report to the CEO or any other executive
designated by the Board from time to time. Employee agrees that
during the term (as hereinafter defined “Term”) of the
Agreement, he will not pursue any other business interests without
the prior written approval of the Company.
2. Term .
The term (the “Term”) of
Employee’s employment under this Agreement shall commence as
of March 1, 2009 and shall continue for a period of three
(3) years thereafter, unless sooner terminated pursuant to
Section 13 below. Thereafter, this Agreement shall continue
for additional, successive one (1) year terms, unless sooner
terminated pursuant to Section 13 below.
3. Salary, Benefits and Other
Compensation . As
compensation for the services and duties to be rendered and
performed by Employee hereunder, Company shall pay to Employee the
compensation and other benefits set forth below. All compensation
received by Employee shall be subject to all applicable federal,
state and local withholding taxes and such other employment taxes
as are required with respect thereto.
(a) Base Salary.
Company shall pay to Employee an annual base salary (“Base
Salary”) in the amount of Two Hundred Ten Thousand and no/100
Dollars ($210,000.00), less required tax and related withholdings.
Employee’s Base Salary shall be payable in installments in
accordance with the regular payroll practices of Company for
salaried personnel. The Board may, at its sole option and in its
sole discretion, increase Employee’s Base Salary from time to
time or at any time during the Term of this Agreement.
(b) Benefits. During
the Term the Employee and, to the extent eligible, his dependents,
shall be entitled to participate in and receive all benefits under
any welfare benefit plans and programs provided by the Company,
business travel insurance plans and programs applicable generally
to the employees of the Company, retirement plans and programs
applicable generally to the employees of the Company, subject,
however, to generally applicable eligibility and other provisions
of the various plans and programs in effect from time to time. In
addition, during the Term the Employee shall be entitled to receive
fringe benefits and perquisites in accordance with the plans,
practices, programs and policies of the Company from time to time
in effect, available generally to the executive officers of the
Company and consistent with the generally applicable guidelines
determined by the Board.
(c) Automobile
Allowance. The Company provides Company vehicles to certain
employees, generally those who incur substantial travel in an
automobile on Company business. The Company charges those employees
who are provided a Company car an amount for the estimated portion
of personal use of the Company car on an after tax basis. The
vehicle make, model and accessories are chosen by the Company and
the employee’s option as to the vehicle they would like to
drive is forfeited. In consideration of the Employee’s
forfeiting his right to drive his vehicle of choice and
Employee’s effort to assist the Company in controlling its
travel costs, at any time during the Term, should the Company
provide a Company vehicle and the Employee be required or elect to
drive the Company vehicle, the Company shall pay to Employee an
automobile allowance (the “Automobile Allowance”) based
on an annualized amount of Six Thousand and no/100 Dollars
($6,000.00), less required tax and related withholdings. The
Automobile Allowance shall be payable in installments in accordance
with the regular payroll practices of Company for salaried
personnel. The Board may, at its sole option and in its sole
discretion, increase the Automobile Allowance from time to time or
at any time during the Term of this Agreement.
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(d) Bonus. Employee is
entitled to participate in any bonus or other executive
compensation plan to be established by the Board, in accordance
with its terms, including but not limited to the 2008 Executive
Bonus Plan.
(e) Signing Payment .
Company shall pay the Signing Payment upon the execution and
delivery of this Agreement. The Signing Payment shall only be paid
once.
4. Expenses .
Company shall pay or reimburse
Employee during the Term for all reasonable, ordinary and necessary
business expenses incurred in the performance of his services
hereunder in accordance with the policies of the Company as are
from time to time in effect. The Employee, as a condition to
obtaining such payment or reimbursement, shall provide to the
Company any and all statements, bills or receipts evidencing the
travel or out-of-pocket expenses for which the Employee seeks
payment or reimbursement, and any other information or materials
reasonably required by such Company policy or as the Company may
otherwise from time to time reasonably require.
5. Vacations and Leave
. The Employee shall be
entitled to that number of vacation days, holidays, sick days and
personal days as is consistent with the Company’s policies
for similarly situated employees. All vacations and personal leave
shall be taken at such times as are mutually agreed upon by
Employee and Company.
6. Company Records and
Property . Employee
shall keep and maintain complete, organized, and up-to-date written
records and files concerning any information directly or indirectly
related to the Business which is made or compiled by, delivered to,
made available to or otherwise obtained by Employee (collectively,
“Company Records”). All Company Records (including,
without limitation, any standard operating procedures, manuals,
sales protocols, statistical information, notebooks, reports,
photographs, research, correspondence, data, software, disks,
diskettes, CD-ROM’s and other materials) are and shall remain
the sole and exclusive property of Company and shall be available
to Company at all times. Except to the extent expressly authorized
by Company in writing, Employee shall treat all Company Records as
Confidential Information (as defined below). Upon termination of
Employee’s employment for any reason, whether voluntary or
otherwise, or at any other time when Company so requests, Employee
shall promptly deliver to Company all Company Records (including
all copies thereof) in Employee’s possession and shall
certify in writing to Company that Employee has returned all such
items. Thereafter, Employee shall not retain or make any further
use of such Company Records or any copies, notes (including
handwritten notes) or excerpts thereof.
7. Service as Consultant or
Expert . Employee
agrees not to serve as a consultant or expert, or become retained
or employed, directly or indirectly, as a consultant or expert
witness in any matter which could involve or concern Confidential
Information (as defined below) without the prior written consent of
Company. Notwithstanding the above, if a court or other legal body
having appropriate jurisdiction orders Employee to testify or
otherwise participate in legal proceedings, and such order is not
subject to appeal or other form of review, this Agreement shall not
prevent Employee from complying with such order; provided that
Employee shall not seek or assist in seeking such an order. Upon
learning that such an order is or has been sought, and in any event
before complying with such an order, Employee shall provide
immediate written advance notice to and consult with Company and
its counsel.
8. Nondisclosure of
Confidential Information .
(a) Employee acknowledges that in
and as a result of Employee’s employment by Company, Employee
will be privy to Confidential Information of a special and unique
nature and value to Company. In view of the foregoing, and as a
material
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inducement to Company to enter into this
Agreement and to pay to Employee compensation and other benefits
stated herein, Employee covenants and agrees that Employee shall
not, directly or indirectly, at any time during the period of
Employee’s employment, disclose any Confidential Information
(defined below in Section 8(c)) to any person, firm,
corporation, or other business entity, except as is necessary for
the proper performance of Employee’s duties and
responsibilities, and only as specifically authorized by Company in
accordance with procedures established by Company. Following
termination of Employee’s employment with Company for any
reason, whether voluntary or otherwise, Employee shall not,
directly or indirectly, disclose any Confidential Information of
Company to any person or entity other than Company for any reason.
During the period of Employee’s employment with Company or
thereafter, Employee shall not, directly or indirectly, without the
prior written consent of Company, make use of any Confidential
Information other than in the performance of his duties in
connection with the Business. Employee agrees to take all
reasonable steps which are necessary to safeguard the secrecy and
confidentiality of, and Company’s proprietary rights to,
Company’s Confidential Information. Employee further agrees
that the obligation not to disclose Confidential Information of
Company continues for as long as such information remains
Confidential Information (as defined in Section 8(c) below).
Notwithstanding the fact the Confidential Information has become or
becomes known or generally available to the public, Employee shall
not disclose Company’s relationship to or interest in any
such information. Except as otherwise expressly provided herein,
the covenants set forth in this Section 8(a) shall be without
time or geographical limitation.
(b) Employee agrees to report
immediately to Company any attempts by former employees or any
other persons to obtain Confidential Information from Employee or
from fellow employees.
(c) As used in this Agreement, the
term “Confidential Information” shall mean any and all
information that is not readily and easily available or generally
known to the public by proper means through sources outside Company
and that concerns the Company’s business, operations, or
affairs, including, without limitation, the following information:
information encompassed in the customer files, sales files and
personnel files of Company; marketing and pricing data and
information, rate schedules, techniques, plans and strategies;
business plans and strategies, ideas, research, strategies and
plans for future development; business methods, techniques and
processes; trade secrets (as defined by Section 39-8-10,
et seq ., of the South Carolina Code of Laws of 1976,
as amended); compilations, projections, designs and estimates; the
nature and content of Company’s contracts and proposals;
information concerning existing and prospective customers,
including the status of negotiations with respect thereto;
information concerning existing and prospective business ventures,
including the status of negotiations with respect thereto; standard
operating procedures, manuals, sales protocols, and statistical
information; financial information relating to the assets,
liabilities, income, expenses, cash flow and any and all other
financial matters of Company and its agents and employees; and the
names, identities and details relating to the creditors and debtors
of Company. The term “Confidential Information” does
not include information which Employee can demonstrate: (i) is
or becomes known publicly through no fault of Employee; or
(ii) is disclosed to Employee by a party unaffiliated with
Company and with the right to disclose, without obligation of
confidentiality. If any Confidential Information becomes publicly
known or readily accessible through a breach of this Agreement,
then for purposes of this Agreement, such Confidential Information
shall continue to be treated as Confidential Information,
notwithstanding such disclosure.
9. Covenants Against
Competition .
(a) Employee acknowledges and agrees
that through his employment with Company, Employee has or will
receive, become familiar with, and have access to valuable
Confidential Information concerning Company’s business,
operations and affairs, all of which are and shall continue to be
the property of Company. Employee further acknowledges and agrees
that the services he is to render to Company are of a special and
unusual character with a unique value to Company, the loss of which
cannot adequately be
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compensated by damages in an action at law
alone. In view of the foregoing, and as a material inducement to
Company to enter into this Agreement and to pay to Employee the
compensation and other benefits stated herein, Employee covenants
and agrees that during the period of Employee’s employment
with Company, and for a period of twelve (12) months after
termination of Employee’s employment with Company for any
reason, whether voluntary or otherwise, Employee shall not,
directly or indirectly:
(i) Compete with Company by engaging
in any Competitive Business similar to that of Company (other than
as a passive investor owning less than a 5% equity interest in a
public entity) and working in a management or operations capacity
or in a capacity similar to that held by Employee during his
employment with Company for such Competitive Business as defined
herein including, without limitation, as a proprietor, partner,
investor, shareholder, director, officer, employee, consultant,
independent contractor, lender, guarantor or otherwise within the
geographic area in which the Company conducts its business at the
time of such termination (the “Territory”);
or
(ii) Work in a management or
operations capacity or in a capacity similar to that held by
Employee during his employment with Company, directly or
indirectly, as a proprietor, owner, manager, operator, partner,
director, officer, employee, consultant, independent contractor or
otherwise, for any person or entity which is then engaged in any
Competitive Business within the Territory; or
(iii) Engage in any business or
activity which requires Employee, or any person or entity employed
by him or whom he represents, to provide Confidential Information
to any person or entity which is then engaged in any Competitive
Business within the Territory.
(b) Employee further covenants and
agrees that during the period of Employee’s employment with
Company, and for a period of twelve (12) months after
termination of Employee’s employment with Company for any
reason, whether voluntary or otherwise, Employee shall not,
directly or indirectly:
(i) Solicit, influence, contact or
deal in any way with any Existing Customer (as defined in
Section 9(c) below) of Company for the purpose of
(1) providing services or products to such Existing Customer
that are competitive with or similar to the services or products
provided by Company or the Business; (2) providing services or
products to such Existing Customer that are competitive with or
similar to future services or products provided or being considered
by Company or the Business; or (3) diverting or attempting to
divert from Company the business of such Existing
Customer;
(ii) Solicit, influence, contact or
deal in any way with any Prospective Customer (as defined in
Section 9(c) below) of Company for the purpose of
(1) providing services or products to such Prospective
Customer that are competitive with or similar to the services or
products provided by Company or the Business; (2) providing
services or products to such Prospective Customer that are
competitive with or similar to future services or products provided
or being considered by Company; or (3) diverting or attempting
to divert from Company the business of such Prospective
Customer;
(iii) Consult, solicit, hire,
attempt to hire, or encourage any existing employee of Company to
accept employment with any person, firm, corporation, or other
business entity that competes, directly or indirectly, with Company
or in the Business of the same kind or nature as that operated by
Company; or
