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EXHIBIT 10.14
EMPLOYMENT AGREEMENT
AGREEMENT made as of this 5th day of April, 2000, by and between
Francis A. Ruggieri (the "EMPLOYEE") and Atlantic Data Services, Inc., a
Massachusetts corporation with a principal place of business at One Batterymarch
Park, Quincy, MA 02169 (the "COMPANY").
WHEREAS, the Company believes it to be to its advantage that the
Employee renders services to the Company as hereinafter provided; and
WHEREAS, the Employee's senior managerial position requires that he or
she be trusted with confidential information and trade secrets of the Company
and that he or she develop a thorough and comprehensive knowledge of various
aspects of the Company's business;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledge, and in consideration of the mutual
covenants and obligations herein contained, the parties hereto agree as follows:
1. POSITION AND RESPONSIBILITIES. The Employee agrees to serve
initially as Senior Vice President of Organization Capital of the Company. The
parties agree that such employment shall be full-time and on an "at-will" basis,
and that either the Employee or the Company may terminate the employment
relationship at any time, with or without cause, upon written notice to the
other party. The Employee shall initially report to, and his or her activities
shall at all times be subject to the direction and control of, the President and
Chief Operating Officer of the Company, and the Employee shall exercise such
powers and comply with and perform, faithfully and to the best of his or her
ability, such directions and duties in relation to the business and affairs of
the Company as may from time to time be vested in or requested of him or her by
the President and Chief Operating Officer and shall use his or her best efforts
to improve and extend the business of the Company.
2. COMPENSATION. The Company shall pay the Employee the following
compensation, including the following:
(A) SALARY. In consideration of the services to be rendered by the
Employee to the Company, the Company will pay to the Employee a monthly salary
of $12,500 (the Employee's "BASE RATE"). Such salary shall be payable in
conformity with the Company's customary practices for executive compensation as
such practices shall be established or modified from time to time. Salary
payments shall be subject to all applicable federal and state withholding,
payroll and other taxes.
(B) FRINGE BENEFITS. The Employee will also be entitled to
participate on the same basis in the Company's standard benefits package
generally available for all other officers of the Company similarly situated. In
addition, the employee shall be eligible to participate in the Company's annual
incentive bonus plan for officers, as approved by and subject to the discretion
of the Company's Board of Directors.
(C) CHANGE OF CONTROL. If, upon a Change of Control (as hereinafter
defined), the Employee is (i) not offered employment by the acquiring
corporation in a comparable position, at a comparable salary or (ii) the Company
or the acquiring corporation terminates the employment of the Employee, without
Cause, within twelve months of the consummation of a Change of Control, then the
Company or the acquiring corporation, as the case may be, shall be obligated to
pay the Employee a severance payment of twelve months' salary at the Employee's
then current base rate, payable in the same manner as such salary was payable
during the period of the Employee's employment. In the event that the Employee
elects to continue health insurance coverage in accordance with the provisions
of the Consolidated Budget Reconciliation Act of 1985 ("COBRA"), the Company
shall continue to pay for Employee's health insurance premium on the same terms
and conditions, and
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subject to the same rules and regulations applicable thereto, as active Company
employees for a period to twelve months from the date of termination of the
Employee's employment with the Company. Thereafter, the Employee shall be solely
liable for the cost of such premium. For purposes of this Agreement, a "CHANGE
IN CONTROL" shall have occurred if at any time during Employee's employment with
the Company any of the following events shall occur:
(i) The Company is merged or consolidated into or with another
corporation or legal person, and as a result of such merger or consolidation
less than a majority of the combined voting power of the then-outstanding
securities of such surviving or resulting corporation or person immediately
after such transaction is held in the aggregate by the holders of the
then-outstanding securities entitled to vote generally in the election of
directors of the Company ("VOTING STOCK") immediately prior to such transaction;
(ii) The Company sells all or substantially all of its assets to
any other corporation or other legal person, and after such sale less than a
majority of the combined voting power of the then-outstanding securities of such
corporation or person immediately after such sale is held in the aggregate by
the holders of Voting Stock of the Company immediately prior to such sale; or
(iii) There is a tender offer in which any "person" (as such term
is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) acquires
the beneficial ownership of securities representing a majority or more of the
Voting Stock of the Company;
PROVIDED, HOWEVER, that a "Change in Control" shall not be deemed to have
occurred for purposes of this Agreement solely because (i) the company, (ii) an
entity in which the Company directly or indirectly beneficially owns 50% or more
of the voting securities, or (iii) any Company-sponsored employee stock
ownership plan or any other employee benefit plan of the Company, either files
or becomes obligated to file a report or a proxy statement under or in response
to Schedule 13D, Schedule 14-D-1, Form 8-K or Schedule 14A (or any successor
schedule, form or report) under the Exchange Act, disclosing beneficial
ownership by it of shares of Voting Stock or because the Company reports that a
change in control of the Company has occurred by reason of such beneficial
ownership.
(D) TERMINATION FOR CAUSE. The Company may terminate the employment
of the Employee at any time for "CAUSE." For purposes of this Agreement, "CAUSE"
means: (a) the Employee's conviction of any crime (whether or not involving the
company) other than unintentional motor vehicle felonies; (b) any intentional
act of theft, fraud or embezzlement by the Employee in connection with his work
with the Company; (c) Employee's continuing, repeated or willful failure or
refusal to perform his duties and services under this Agreement (other than due
to his incapacity due to illness or injury); or (d) the Employee's violation of
Section 3 of this Agreement.
If the Company terminates the Employee's employment for Cause at any
time (regardless of whether or not the Company experiences a Change of Control),
the Employee shall not be entitled to any compensation or benefits following the
date of such termination, other than compensation and benefits required to be
paid or provided by law and payment of the Employee's normal post-termination
benefits in accordance with the Company's retirement, insurance and other
benefit plans and arrangements.
(E) TERMINATION WITHOUT CAUSE. The Company may terminate the
employment of the Employee at any time without Cause. If the Company terminates
the Employee's employment without Cause at any time, then the Company shall be
obligated to pay the Employee a severance payment of twelve month's salary at
the Employee's then current base rate, payable in the same manner as such salary
was payable, during the period of the Employee's employment. In the event that
the Employee elects to continue health insurance coverage in accordance with the
provisions of COBRA, the Company shall continue to pay for Employee's health
insurance premium on the same terms and conditions, and subject to the same
rules and regulations applicable
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thereto, as active Company employees for a period of twelve months from the date
of termination of Employee's employment with the Company. Thereafter, the
Employee shall be solely liable for the cost of such premium.
3. NONDISCLOSURE AND DEVELOPMENTS; NON-SOLICITATION.
(A) NONDISCLOSURE. Employee will not at any time, whether during or
after his or her period of employment by the Company ("EMPLOYMENT PERIOD")
reveal to any person or entity any of the trade secrets or confidential
information concerning the organization, business or finances of the Company or
of any third party which the Company is under an obligation to keep confidential
(including but not limited to trade secrets or confidential information
respecting inventions, products, designs, methods, know-how, techniques,
systems, processes, software programs, works of authorship, customer lists,
software, supplier lists, pricing, projects, plans and proposals), except as may
be required in the ordinary course of performing duties as an employee of the
Company, and Employee shall keep secret all matters entrusted to him or her and
shall not use or attempt to use any such information in any manner which may
injure or cause loss or may be calculated to injure or cause loss, whether
directly or indirectly, to the Company. Further, Employee agrees that during and
after the Employment Period he or she shall not make, use or permit to be used
any notes, memoranda, reports, lists, records, drawings, sketches,
specifications, software programs, data, documentation or other materials of any
nature relating to any matter within the scope of the business of the Company or
concerning any of its dealings or affairs otherwise than for the benefit of the
Company, it being agreed that all of the foregoing shall be and remain the sole
and exclusive property of the Company, and that immediately upon the termination
of Employee's employment he or she shall deliver all of the foregoing, and all
copies thereof, to the Company, at its main office.
(B) DEVELOPMENTS. If at any time or times during the Employment
Period, Employee shall (either alone or with others) make, conceive, create,
discover, invent or reduce to practice any invention, modification, discovery,
design, development, improvement, process, software program, work of authorship,
documentation, formula, data, technique, know-how, trade secret or intellectual
property right whatsoever or any interest therein (whether or not patentable or
registrable under copyright, trademark or similar statutes, including but not
limited to the Semiconductor Chip Protection Act, or subject to analogous
protection) (herein called "DEVELOPMENTS") that (i) relates to the business of
the Company or any customer of or supplier to the Company or any of the products
or services being developed, manufactured or sold by the Company or which may be
used in relation therewith, (ii) results from tasks assigned the Employee by the
Company or (iii) results from the use of premises or personal property (whether
tangible or intangible) owned, leased or contracted for by the Company, then:
(i) such Developments and the benefits thereof are deemed
works-made-for hire (if applicable) and shall immediately become the sole and
absolute property of the Company and its assigns, as works made for hire or
otherwise;
(ii) Employee shall promptly disclose to the Company (or any
persons designated by it) each such development;
(iii) as may be necessary to ensure the Company's ownership of
such Developments, Employee hereby assigns any rights (including, but not
limited to, any patents, copyrights and trademarks) he or she may have or
acquire in the Developments and benefits and/or rights resulting therefrom to
the Company and its assigns without further compensation; and
(iv) Employee shall communicate, without cost or delay, and
without disclosing to others the same, all available information relating
thereto (with all necessary plans and models) to the Company.
(C) FURTHER ASSURANCES. Employee will, during and after the
Employment Period, at the request and cost of the Company, promptly sign,
execute, make and do all such deeds, documents, acts and things as the Company
and its duly authorized agents may reasonably require:
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(i) to apply for, obtain, register and vest in the name of the
Company alone (unless the Company otherwise directs) letters patent, copyrights,
trademarks or other analogous protection in any country throughout the world and
when so obtained or vested to renew and restore the same; and
(ii) to defend any judicial, opposition or other proceedings in
respect of such applications and any judicial, opposition or other proceedings
or petitions or applications for revocation of such letters patent, copyright,
trademark or other analogous protection.
In the event the Company is unable, after reasonable effort, to secure
Employee's signature on any application for letters patent, copyright or
trademark registration or other documents regarding any legal protection
relating to a Development, whether because of Employee's physical or mental
incapacity or for any other reason whatsoever, Employee hereby irrevocably
designates and appoints the Company and its duly authorized officers and agents
as his or her agent and attorney-in-fact, to act for an in Employee's behalf and
stead to execute and file any such application or applications or other
documents and to do all other lawfully permitted acts to further the prosecution
and issuance of letters patent, copyright or trademark registrations or any
other legal protection thereon with the same legal force and effect as if
executed by Employee.
(D) NON-SOLICITATION. For a period of two (2) years after any
termination of employment with the Company, whether voluntary or involuntary,
Employee will not, directly or indirectly:
(i) solicit for employment or employ, or permit any other
company or business organization which is directly or indirectly controlled by
Employee to solicit for employment or employ, any person who is employed by the
Company, or in any manner assist any person or entity in soliciting for
employment or hiring any employee of the Company, or otherwise seek to induce
any such employee to leave his or her employment with the Company; or
(ii) solicit any of the Company's then current customers, or
permit any other company or business organization which is directly or
indirectly controlled by Employee to solicit any such customers, or in any
manner assist any person or entity in soliciting such customers of the Company,
or otherwise seek to induce any such customer to terminate its business
relationship with the Company.
(E) SPECIFIC PERFORMANCE. Employee agrees that any breach of this
Section 3 by Employee will cause irreparable damage to the Company and that in
the event of such breach the Company shall have, in addition to any and all
remedies of law, the right to an injunction, specific performance or other
equitable relief to prevent the violation of Employee's obligations hereunder.
4. CONSENT AND WAIVER BY THIRD PARTIES. The Employee hereby represents
and warrants that he or she has obtained all waivers and/or consents from third
parties which are necessary to enable him or her to enjoy employment with the
Company on the terms and conditions set forth herein and to execute and perform
this Agreement without being in conflict with any other agreement, obligation or
understanding with any such third party. The Employee represents that he or she
is not bound by any agreement or any other existing or previous business
relationship which conflicts with, or may conflict with, the performance of his
or her obligations hereunder or prevent the full performance of his or her
duties and obligations hereunder.
5. GOVERNING LAW; JURISDICTION AND VENUE. This Agreement, the
employment relationship contemplated herein and any claim arising from such
relationship, whether or not arising under this Agreement, shall be governed by
and construed in accordance with the internal laws of the Commonwealth of
Massachusetts, without reference to its conflicts of law principles, and this
Agreement may be instituted in either the courts of the Commonwealth of
Massachusetts or the United States District Court for the District of
Massachusetts, and Employee hereby irrevocably submits to the jurisdiction of
any such court in any such action or proceeding, and Employee expressly consents
to personal jurisdiction and venue in any such action.
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6. SEVERABILITY. In the case any one or more of the provisions
contained in this Agreement for any reason shall be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but this agreement shall
be construed and reformed to the maximum extent permitted by law.
7. WAIVERS AND MODIFICATIONS. This Agreement may be modified, and the
rights, remedies and obligations contained in any provision hereof may be
waived, only in accordance with this Section 7. No waiver by either party of any
breach by the other or any provision hereof shall be deemed to be a waiver of
any later or other breach thereof or as a waiver of any other provision of this
Agreement. This Agreement sets forth all of the terms of the understandings
between the parties with reference to the subject matter set forth herein and
may not be waived, changed, discharged or terminated orally or by any course of
dealing between the parties, but only by an instrument in writing signed by the
party against whom any waiver, change, discharge or termination is sought.
8. ASSIGNMENT. The Employee acknowledges that the services to be
rendered by him or her hereunder are unique and personal in nature. Accordingly,
the Employee may not assign any of his or her rights or delegate any of his or
her duties or obligations under this Agreement. The rights and obligations of
the Company under this Agreement shall inure to the benefit of, and shall be
binding upon, the successors and assigns of the Company.
9. ACKNOWLEDGMENTS. The Employee hereby acknowledges and recognizes
that the enforcement of any of the provisions in this Agreement may potentially
interfere with the Employee's ability to pursue a proper livelihood. The
Employee represents that he or she is knowledgeable about the business of the
Company and further represents that he or she is capable of pursuing a career in
other industries to earn a proper livelihood. The Employee recognizes and agrees
that the enforcement of the provisions of Section 3 of this Agreement are
necessary to ensure the preservation, protection and continuity of the business,
trade secrets and goodwill of the Company.
10. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding of the parties relating to the subject matter set forth herein and
supersedes and cancels all agreements, written or oral, made prior to the date
hereof between the Employee and the Company relating to employment, salary,
bonus, or other compensation of any description, equity participation, pension,
post-retirement benefits, severance or other remuneration, including the
Employment Agreement.
11. NOTICES. All notices hereunder shall be in writing and shall be
delivered in person or mailed by certified or registered mail, return receipt
requested, addressed as follows:
If to the Company, to: Atlantic Data Services, Inc.
One Batterymarch Park
Quincy, MA 02169
Attention: Chief Executive Officer
If to the Employee, at the Employee's address set forth on the
signature page hereto.
12. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
13. SECTION HEADINGS. The descriptive section headings herein have been
inserted for convenience only and shall not be deemed to define, limit, or
otherwise affect the construction of any provision hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written as an instrument under seal.
ATLANTIC DATA SERVICES, INC. EMPLOYEE:
By: /s/ William H. Gallagher /s/ Francis A. Ruggieri
-------------------------------- --------------------------
William H. Gallagher Francis A. Ruggieri
Title: President and Chief Operating Officer 45 Essex Road
------------------------------------- Norwood, MA 02062
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