Exhibit 10.1
[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 Nancy K.
Hedrick (“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 (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, 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 President and Chief Executive Officer of the Company
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 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
Board, Employee hereby agrees to perform such services, duties and
responsibilities as are set forth in the job description for
Company’s President and Chief Executive Officer 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
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 Board from time to time. Employee agrees that during the term
(as hereinafter defined “Term”) of the Agreement, she
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 One Hundred Ninety-Four Thousand
Two Hundred and Fifty and no/100 Dollars ($194,250.00), for the one
year period beginning on the date of this Agreement. Effective
March 1, 2010, the Company shall pay to Employee a Base Salary
of Two-Hundred Twenty-Five Thousand and no/100 Dollars
($225,000.00). Base Salary shall be paid 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, her 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) [Intentionally
Deleted.]
(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) Stock Option. Employee
will be granted a nonqualified stock option (the
“Option”) to purchase fifty thousand
(50,000) shares of the Company’s common stock, par value
$0.001 per share (“Common Stock”), from the Company
pursuant to the following terms and conditions:
(i) The Option will be issued
pursuant to, and governed by, the Company’s 2005 Incentive
Compensation Plan (the “Plan”);
2
(ii) the date on which the Option
shall be granted to the Employee and the exercise price determined
shall be the twelfth trading day following the filing of the
Company’s Form 10-K for the year ended December 31, 2008
(the “Grant Date”);
(iii) the Option shall have an
exercise price equal to the fair market value of the Common Stock
on the Grant Date as such value is determined pursuant to the terms
of the Plan;
(iv) the Option shall be evidenced
by a stock option agreement substantially in the form attached
hereto as Exhibit A (the “Option
Agreement”);
(v) subject to the provisions of the
Option Agreement and the Plan, the Option shall become exercisable
(or “vest”) with respect to all fifty thousand
(50,000) shares of Common Stock covered thereby on
March 1, 2010; and
(vi) the Option shall expire ten
years from the Grant Date.
4. Expenses .
Company shall pay or reimburse
Employee during the Term for all reasonable, ordinary and necessary
business expenses incurred in the performance of her 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
3
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 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 her 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.
4
9. Covenants Against
Competition .
(a) Employee acknowledges and agrees
that through her 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 she 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 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 her or whom she 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
5
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
(iv) Consult, solicit, hire, attempt
to hire, or encourage any former employee of Company who, at the
time of the termination of Employee’s employment, has been
away from Company for less than six (6) months, to accept
employment with any person, firm, corporation, or other business
entity that competes, directly or indirectly, with Company or the
Business or for the sale or provision of services or products of
the same kind or nature as those offered for sale by
Company.
(c) As used in Section 9(b)
above, the term “Existing Customer” shall mean any
actual customer of Company that (i) Employee solicits or has
contact with during the period of Employee’s employment; or
(ii) Employee knows to have been solicited or contacted by or
on behalf of Company during the twelve (12) month period prior
to the termination of Employee’s employment. The term
“Prospective Customer” shall mean any prospective
customer of Company that (i) Employee solicits or has contact
with during the period of Employee’s employment;
(ii) Employee knows to have been solicited or contacted by or
on behalf of Company during the twelve (12) month period prior
to the termination of Employee’s employment; or
(iii) Employee knows to have been so identified in any
marketing report, business plan, or other plan or report of
Company, regardless of whether such customer consummates or
completes a business transaction with Company.
10. Reasonableness of
Restrictions . Employee represents and warrants that she has
carefully read and considered the provisions of Sections 8
(Nondisclosure of Confidential Information) and 9 (Covenants
Against Competition) above, and, having done so, agrees that such
restrictions (including, but not limited to, any time periods
and/or geographical areas of restriction) are fair and reasonable
and are reasonably required for the protection of the interests of
Company and its officers, directors, shareholders and other
employees. Notwithstanding the foregoing, in the event any of the
provisions of Sections 8 (Nondisclosure of Confidential
Information) or 9 (Covenants Against Competition) above shall be
held to be invalid or unenforceable by a court of competent
jurisdiction, the remaining provisions of this Agreement shall
nevertheless continue to be valid and enforceable as though the
invalid or unenforceable parts had not been included herein. In the
event any of the provisions of Sections 8 (Nondisclosure of
Confidential Information) or 9 (Covenants Against Competition)
above relating to the time periods, geographic areas and/or related
aspects of the restrictions set forth therein shall be declared by
a court of competent jurisdiction to exceed the maximum
restrictiveness such court deems reasonable and enforceable, the
time periods, geographical areas or other aspects thereof deemed
reasonable and enforceable by such court shall become and
thereafter be the maximum restriction in such regard, and the
restrictions shall remain enforceable to the fullest extent deemed
reasonable by such court.
11. Inventions and
Non-Disclosure .
(a) Company shall have the sole and
exclusive right, title and interest in and to all
“Innovations,” which, for the purposes hereof, shall
mean all innovations, discoveries, ideas, information, inventions,
methods, processes, products, techniques, designs, devices,
technology, derivative works, works of authorship, and improvements
thereto and physical manifestations thereof (whether or not
patentable, protected by copyright, suitable for adoption as
trademark or otherwise) that are acquired, conceived, created,
developed, or reduced to practice in whole or in part by Employee
(either alone or with others) during the course of his
employment
6
with Company (including Employee’s
employment, if any, by Company or any predecessor entity prior to
the date hereof) that (i) relate in any way to the Business,
or (ii) result in any way from the performance by Employee of
her duties and responsibilities hereunder. Employee shall promptly
and fully disclose all Innovations to Company in writing. Except to
the extent expressly authorized by Company, Employee shall treat
all Innovations as Confidential Information.
(b) Employee agrees to assign and
hereby assigns to Company (and/or its designee) all of the
Employee’s right, title and interest in and to any and all
Innovations. Any and all assignments under this Section 11(b)
shall be self-executing. Employee shall, at the request of Company
and without additional compensation, take such further actions
(including, without limitation, the provision of assistance in
preparing and prosecuting all applications, registration forms, and
other documents relating to the acquisition or maintenance of
copyrights, trademarks, service marks, and/or patents in the United
States or other countries, and the provision of such other
assistance as may be requested by Company in connection with any
legal proceedings involving Innovations) and execute and deliver
such other and further instruments (including, without limitation,
applications, registration forms, and other documents relating to
the acquisition or maintenance of copyrights, trademarks, service
marks, and/or patents in the United States or other countries) as
Company, in its sole discretion, deems necessary to secure,
perfect, and maintain Company’s (and/or its designee’s)
sole and exclusive right, title, and interest in and to any and all
Innovations.
12. Remedies for Breach
. Employee acknowledges
and agrees that the services Employee has or will render to Company
are extraordinary and unique and that, accordingly, the injury
Company would suffer in the event of a breach or threatened breach
by Employee of this Agreement would be irreparable injury, not
adequately compensated by monetary damages alone. Employee
therefore agrees that in the event of any breach or threatened or
intended breach of this Agreement by Employee, in addition to any
other remedies at law or equity available to Company (which in no
way are hereby limited), Company shall be entitled to injunctions,
both temporary and permanent, enjoining and restraining such breach
or threatened or intended breach, and Employee hereby consents to
the issuance thereof by any court of competent jurisdiction without
bond. Company may further assert such claims as it might have
against Employee for actual, incidental, consequential, punitive
and other damages resulting from the breach of this Agreement. If
Company prevails in whole or in part in any such action, Employee
shall be liable to Company for all reasonable costs, expert witness
fees, and attorney’s fees that Company incurs in connection
with seeking such legal or equitable relief.
13. Termination of
Employment .
(a) Termination because of
Death or Disability. This Agreement and Employee’s
employment with Company will terminate for the following reasons
and as described below:
(i) In the event the Employee shall
be evaluated by a physician selected by the Employee and a
physician selected by the Company as being permanently and totally
disabled and unable to perform the essential functions of his
duties hereunder by virtue of illness or physical or mental
incapacity or disability (from any cause or causes whatsoever) in
substantially the manner and to the extent performed prior to the
commencement of such disability (all such causes being referred to
as “disability’) and the Employee shall fail to perform
such duties for periods aggregating ninety (90) days
(inclusive of non-business days), whether or not continuous, in any
continuous period of one hundred and eighty (180) days, the
Company shall have the right to terminate the Employee’s
employment hereunder as at the end of any calendar month during the
continuance of such disability upon at least ten (10) days
prior written notice to her. Nothing contained herein is intended
to nullify or diminish the Employee’s rights under, and this
paragraph 13(a)(i) is subject to, the Americans with Disabilities
Act of 1990 and the Family and Medical Leave Act of 1993, as such
Acts may be amended from time to time.
7
(ii) The employment of the Employee
with the Company shall terminate on the date of the Empl