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EXHIBIT 10.10
EMPLOYMENT AGREEMENT
(Alternate 1 - 3 years)
This Employment Agreement ("Agreement") is made as of April 16, 1998,
by and between SOFTWARE CONSULTING SERVICES AMERICA, INC., a Delaware
corporation, located at 000 Xxxxx Xxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxxxx
00000 (the "Company"), and XXXXXXX X. XXXX, an individual with an address of 000
Xxxxx Xxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxxxx 00000 (the "Employee").
1. Employment. The Company hereby agrees to employ the Employee and the
Employee hereby agrees to work for the Company under the terms and conditions
set forth herein. This Agreement supersedes and replaces any prior employment
agreement or other agreement between the parties dealing with the subject matter
hereof and such prior agreements, if any, are hereby terminated.
2. Term of Employment. The term of employment pursuant to this
Agreement shall begin on the date set forth above (the "Effective Date") and
shall continue in effect for an initial term of three (3) years from the date
set forth above unless terminated in accordance with Section 7, and shall be
extended from year to year thereafter, unless terminated effective as of the end
of the initial term or any one-year extension thereafter by written notice from
the Company to Employee, or by written notice of Employee to the Company,
delivered not less than sixty (60) days prior to the end of the initial term, or
the end of such one-year extension, as applicable.
3. Scope of Duties; Covenants.
(a) The Employee shall be employed by the Company in the
position set forth on Schedule A hereto and shall perform the duties as set
forth on Schedule A hereto. At all times, Employee shall serve under the
direction of the Board of Directors and the Chief Executive Officer of the
Company and shall perform such services and exercise such authority as is
customary for such position.
(b) So long as he is employed by the Company, Employee shall
devote his skill, energy and best efforts to the faithful discharge of his
duties as an employee of the Company. The Employee agrees that in the provision
of all services to the Company, he will comply with and follow the provisions of
this Agreement and all directives, policies, standards and regulations from time
to time established by the Board of Directors of the Company.
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(c) Employee represents and warrants that Employee is under no
contractual or other restrictions or obligations which will significantly limit
the performance of Employee's obligations under this Agreement or which will
prohibit or limit the use by the Employee of any information which relates to
the business of the Company or the services to be rendered by the Employee under
this Agreement (including, without limitation, any agreement relating to any
proprietary information, knowledge or data acquired by Employee in confidence,
trust or under other obligation prior to Employee's employment by the Company).
Employee covenants and agrees that Employee shall not disclose to the Company,
or induce the Company to use, any such proprietary information, knowledge or
data belonging to any previous employer or others. Employee further covenants
and agrees not to enter into any agreement or understanding, either written or
oral, in conflict with the provisions of this Agreement during the term of this
Agreement.
(d) To the extent they relate to, or result from, directly or
indirectly, the actual or anticipated operations of the Company, the Employee
hereby agrees that all Intellectual Property (defined below) developed,
purchased or acquired by the Company, shall be the exclusive property of the
Company, and unless otherwise agreed by the Company, all right, title and
interest therein shall remain in the Company.
(e) The Employee will hold all Intellectual Property and
Confidential Information (defined below) in trust for the Company and will
deliver all Intellectual Property and Confidential Information in his possession
or control to the Company upon request and, in any event, at the end of his
employment with the Company. During the term of his employment with the Company,
the Employee will promptly disclose to the Company all Confidential Information
that comes to Employee's attention which has not previously been disclosed to
the Company, as well as any business opportunity reasonably related to the scope
of business of the Company or an Assisted Affiliate as described in Section 8,
which comes to his attention. The Employee will not take advantage of or divert
from the Company any such business opportunity for the benefit of himself or any
other party without the prior written consent of the Company.
4. Compensation.
(a) During the first year of the term of employment hereunder,
the Company shall pay the Employee a base salary, payable in equal periodic
installments in accordance with the Company's customary payroll practices, not
less frequently than semi-monthly, at an annual rate or rates set forth on
Schedule A attached hereto and incorporated by reference herein. Schedule A may
also set forth certain other compensation payable to Employee. In each
subsequent year of the term of employment, the Company shall pay to the Employee
a salary and any such other compensation determined by the Board of Directors
following its annual salary and performance review; provided, however, that such
salary and compensation shall not be less than the amount determined in
accordance with Schedule A.
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(b) Employee shall receive an annual cash performance bonus
for each calendar year during the term of this Agreement to be determined
according to the following procedure except as may be otherwise mutually agreed
to between the Employee and the Company. The Board of Directors of the Company,
or the Compensation Committee of the Board of Directors, if so authorized, shall
establish specific annual performance goals for the Company and for Employee
with respect to each calendar year (or portion thereof) during the term of this
Agreement commencing on January 1, 1998. Such goals for 1998 shall be in
accordance with Schedule A. For subsequent years, such goals shall be
communicated to Employee not later than the end of the first quarter of the
applicable calendar year. At the end of each calendar year during the term of
this Agreement, or within a reasonable time thereafter, the Board of Directors
of the Company, or the Compensation Committee of the Board of Directors, if so
authorized, shall review the actual performance of the Company and Employee,
giving due consideration to market and other developments outside of the control
or influence of Employee and the Company, and based upon the extent to which the
applicable annual performance goals have been achieved, shall determine in its
sole and absolute discretion, the amount of performance bonus payable to
Employee with respect to such year.
(c) The Company shall also pay Employee a monthly automobile
allowance in the amount set forth on Schedule A attached hereto.
(d) All payments of salary and other compensation to the
Employee shall be made after deduction of any taxes which are required to be
withheld with respect thereto under applicable federal and state laws.
5. Vacation/Personal Time. Employee shall be entitled to leave for
vacation and personal time off as provided on Schedule A attached hereto and
incorporated by reference herein. Unused holidays and days for personal time off
and vacation may not be carried over from one fiscal year to another. The
aggregate number of days specified on Schedule A for vacation and personal time
off need not be taken by Employee in succession, but in any increments and at
any time during the year as approved by the Company. For purposes of this
Agreement, "personal time off" shall include time taken off by Employee on
account of illness, family emergency or death in the immediate family.
6. Fringe Benefits; Expenses. So long as the Employee is employed by
the Company, the Employee shall participate in any employee benefit plans
sponsored by the Company generally for its employees serving in similar
employment capacities as the Employee as determined from time to time by the
board of directors of the Company or any compensation committee of the board of
directors, if any, and on terms at least as favorable to Employee as are
generally offered to other employees of the Company serving in a similar
capacity. The Company shall also reimburse
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Employee for his reasonable travel and other out-of-pocket business expenses
incurred in connection with his employment under this Agreement pursuant to
expense reports filed in accordance with the Company's policies in effect from
time to time, provided that if Employee receives an automobile allowance
pursuant hereto, then Employee shall not otherwise be reimbursed for automobile
expenses under this provision, except for out-of-town rental automobiles.
7. Termination.
(a) General. Employer and Employee agree that Employee's
employment hereunder may be terminated by the Employee resigning or by the
Company's declaration of termination with or without "Cause" at any time,
subject to the terms of this Section 7. Such termination shall be effective upon
delivery of written notice from the acting party to the other of its election to
terminate employment pursuant to this Section 7. "Cause" when used in connection
with the termination of employment with the Company, shall mean the termination
of the Employee's employment by the Company by reason of (i) Employee's material
breach of any of Sections 3, 7, 8, 9, 10, 11 and 12 of this Agreement which
breach, if curable, is not cured within thirty (30) days of written notice to
Employee of such breach; (ii) the conviction of, or the entering of a guilty
plea or no contest plea by, the Employee for a crime involving moral turpitude
by a court of competent jurisdiction; (iii) the commission by the Employee of an
act of fraud upon the Company or any of its affiliates; (iv) the
misappropriation of any funds or property of the Company or any of its
affiliates by the Employee; (v) the failure by the Employee to perform material
duties assigned to him pursuant to Schedule A or otherwise assigned to and
accepted by Employee, or to comply with any written Company policy after
reasonable written notice and opportunity to cure such performance; (vi) the
engagement by the Employee in any direct, material conflict of interest with the
Company or any of its Assisted Affiliates without compliance with the Company's
conflict of interest policy, if any, then in effect; or (vii) the engagement in
any activity which would constitute a material violation of the provisions of
the BrightStar Information Technology Group, Inc. ("BrightStar") xxxxxxx xxxxxxx
policy, if any, then in effect.
(b) Termination for Cause or Resignation. If the Company
terminates the Employee's employment for Cause or the Employee voluntarily
resigns, the Company shall pay the Employee's base salary earned through the
date of termination (and any other earned but unpaid compensation and accrued
vacation time prior to termination), but all rights to any other compensation or
benefits arising hereunder, shall be canceled and terminated in all respects
concurrently with such termination of employment; provided that the Employee may
elect to continue to participate, at Employee's own expense, in such health
insurance and other benefits as to which the opportunity for continuing
participation is mandated by applicable laws.
(c) Termination Without Cause. In the event that the
Employee's employment is terminated by the Company without Cause other than at
the end of the initial term or one of the one year renewal terms of this
Agreement, the Company shall, subject to the terms of subsections 7.(e) and
7.(f) below, and only if and as long as Employee is not in breach of his
obligations under this Agreement, pay compensation to Employee in the manner set
forth below. Employee may not be terminated without Cause unless such
termination has been approved in writing by BrightStar. If the Employee is
terminated without Cause during the initial three-year term of this Agreement,
then the
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Company shall continue to pay to Employee his current base salary provided for
under this Agreement, plus any other earned and unpaid compensation and accrued
vacation time prior to termination, plus a per annum amount of additional
compensation based on prior earned bonuses and/or commissions, if any, equal to
the amount of earned bonuses or commissions of Employee during the twelve
complete calendar months immediately preceding the date of termination
("Severance Payments"), in periodic payments in accordance with its customary
payroll practices for the period ending the later of (i) the end of the initial
three-year term of the Agreement or (ii) twelve months after termination of
employment. If the Employee is terminated without Cause during any one-year
extension of the initial term of the Agreement, then the Company shall continue
to pay to Employee Severance Payments in accordance with its customary payroll
practices for a period of twelve months after termination of such employment. If
the Employee is terminated by the Company without Cause, the Company shall also
continue to provide benefits in the kind and amounts provided to its employees
generally for up to twelve months following the date of termination, including
continuation of any Company-paid benefits provided pursuant hereto, for the
Employee and Employee's spouse and minor children, provided such benefits will
be subject to immediate termination to the extent Employee receives benefits
under another similar benefit plan. If the Company fails to make any of the
payments required under this Section 7.(c) when reasonably due, then any
restrictions imposed by Section 8 hereof against Employee competing with the
Company shall immediately lapse, but this shall not release the Company's
obligation for Severance Payments. Employee agrees that the above payments shall
be a full settlement of the Company's obligations to Employee hereunder in the
event of a termination without Cause.
(d) Termination Following Change of Control. In the event of
(i) the sale of all or substantially all of the assets of the Company, or (ii) a
merger, consolidation, liquidation or reorganization of the Company, in which
the Company or an affiliate of the Company is not the surviving entity, or which
results, in any event, in a change of control of the Company (each, a "Change in
Control Transaction"), the Company or the surviving entity, as the case may be,
may either (A) terminate Employee's employment hereunder and pay to the Employee
an amount equal to thirty-six months (36) compensation at Employee's then
current annual salary, payable not less frequently than monthly, and continue to
provide benefits in the kind and amounts provided to its employees generally for
such thirty-six (36) month period (collectively, "Change of Control
Compensation") or (B) adopt this Agreement; provided, however, that if the
Company or the surviving entity elects to adopt this Agreement following a
Change in Control Transaction and it shall subsequently terminate Employee's
term of employment without Cause, then it shall pay and provide to Employee
salary and benefits equal to the greater of (x) the salary and benefits to be
provided under Section 7.(c), and (y) the difference between the salary and
benefits provided to Employee pursuant to clause (A) above and the aggregate
amount of salary and benefits actually paid to Employee following the Change in
Control Transaction.
(e) Disability; Death. If at any time during the term of this
Agreement, Employee is unable, due to physical or mental disability, to perform
effectively his duties hereunder, the Company shall continue payment of
compensation as provided in Section 4 during the first six months of such
disability to the extent not covered by the Company's disability insurance
policies. Upon the expiration of such six month period, the Company, at its sole
option, may continue payment of Employee's salary for such additional periods as
the Company elects, or may terminate
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this Agreement without any further obligations hereunder. If Employee should die
during the term of this Agreement, Employee's employment and the Company's
obligations hereunder shall terminate as of the end of the month in which
Employee's death occurs and there will be no salary and benefit continuation
period. Employee shall be deemed to have incurred a disability if Employee
suffers a physical or mental condition which (i) satisfies the definition of
"total disability" in the Company's disability insurance policies, or (ii) if no
such policy or plan is then covering Employee, in the reasonable judgment of the
Board of Directors, prevents Employee from engaging in any substantial gainful
employment with the Company for a period of more than six (6) months.
(f) Standstill Agreement; Lock-up Letters. So long as Employee
is employed by the Company or receives severance compensation as provided above,
Employee agrees that he will sign any reasonable securities lock-up letters,
standstill agreements, or other similar documentation required by an underwriter
in connection with a public offering of securities by BrightStar or take other
actions reasonably related thereto as requested by the Board of Directors of the
Company under similar terms and conditions as for other management employees of
the Company or BrightStar generally. Failure to take any such action shall be a
"Cause" for termination and shall cause Employee to forfeit any further rights
to compensation or other payments hereunder. In addition, Employee agrees that
in such event the Company can seek and obtain specific performance of such
covenant, including any injunction requiring execution thereof, and the Employee
hereby appoints the then current president of the Company to sign any such
documents on his behalf so long as such documents are prepared on the same basis
as for other management shareholders generally.
(g) Relocation or Material Change in Duties. If Employee's
employment is terminated because of Employee's refusal to relocate to another
office of the Company or to accept a material change in duties, such termination
shall not be deemed a termination for Cause or a termination without Cause. In
the event of such a termination, the Company shall continue to pay to Employee
his current base salary plus any other earned and unpaid compensation and
accrued vacation time prior to termination, plus a per annum amount of
additional compensation based on prior earned bonuses and/or commissions, if
any, equal to the amount of earned bonuses or commission of Employee during the
twelve complete calendar months immediately preceding the date of termination,
in customary periodic payments for twelve (12) months after such termination;
and the Company shall continue to provide benefits to Employee the same as are
available to its employees generally for up to twelve (12) months after
termination, provided that such benefits will be terminated to the extent
Employee receives benefits under another similar benefit plan.
8. Covenant Not to Compete.
(a) During Term of Employment. During Employee's term of
employment pursuant to this Agreement, Employee will not compete with the
Company or its affiliates, directly or indirectly, either for himself or as a
member of a partnership or a limited liability company or as a stockholder
(except as a stockholder of less than one percent (1 %) of the issued and
outstanding stock of a publicly-held company whose gross revenues exceed $100
million), investor, owner, officer or director of a company or other entity, or
as an employee, agent, trustee, manager, associate or consultant of any person,
partnership, corporation or other entity, in any business in competition with
that carried on by the Company or any of its affiliates. As of the date hereof,
the Company anticipates
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that it will engage principally in the business of providing information
technology services to a variety of industries, but the provisions of this
Section 8.(a) shall apply to any business in which the Company or its affiliates
are engaged during the term of Employee's employment.
(b) Restricted Periods. Section 8.(c) below restricts
Employee's ability to compete against the Company or it affiliates following
Employee's term of employment. For purposes of this Section 8, and in particular
Section 8.(c), if Employee voluntarily resigns his employment with the Company,
or is terminated by the Company for Cause, then the period for which Employee
cannot compete with the Company shall be the longer of (i) four (4) years from
the date hereof, or (ii) one (1) year after the termination of employment
("Restricted Period For Cause"). If Employee is terminated by Employer without
Cause or pursuant to Section 7(d) above, then the period for which Employee
cannot compete with the Company or its affiliates (the "Restricted Period
Without Cause"), shall be based upon whether Employee was terminated during the
initial three-year term or during any extension thereof. If Employee was
terminated without Cause during the initial three-year term, the Restricted
Period Without Cause shall be the greater of (i) the remaining months left of
the initial three-year term, or (ii) until one (1) year after the termination of
employment without Cause. If Employee was terminated during any one (1) year
extension of the initial three-year term, the Restricted Period Without Cause
shall be equal to one (1) year after the termination of employment without
Cause. If Employee is terminated under the circumstances in Section 7(g) above,
then the period for which the Employee may not compete pursuant hereto shall be
for one year after the date of termination. If Employee is also a party to that
certain Agreement and Plan of Exchange dated December 19, 1997 among BrightStar
Information Technology Group, Inc. and the Shareholders of the Company (or its
predecessor) at that time and bound by certain non-competition provisions
contained therein, then any restricted non-compete periods under such agreement
are hereby modified so as to conform with the restricted periods contained in
this Section 8.(b).
(c) Following Term of Employment. Employee further agrees
that, during the Restricted Period For Cause or the Restricted Period Without
Cause or the restricted period if termination occurs under the circumstances in
Section 7(g), as applicable, Employee will not represent, engage in or carry on,
directly or indirectly, any business with any customer or client of the Company
(or any customer or client of an affiliate of the Company for which the Employee
has materially assisted such affiliate in serving such customer or client
("Assisted Affiliate")) at the time of termination of employment, or any
business within 100 miles of the city or county limits of any city or county in
the United States or foreign countries where the Company or any Assisted
Affiliate has an office or in which the Company provides services which produce
Company revenues of an amount equal to 2% or more of the Company's revenues for
the twelve complete calendar months preceding the time of termination, which
business competes with any business, services or products produced, sold,
conducted, developed, or in the process of development by the Company or jointly
by the Company and an Assisted Affiliate during the term of Employee's
employment, including any business that involves the furnishing of information
technology services that are the type of services furnished by the Company,
either for himself, as a member or equity owner of a partnership or a limited
liability company, or as a shareholder (other than as a shareholder of less than
one percent (1%) of the issued and outstanding stock of a publicly-held company
whose gross revenues exceed $100 million), investor, owner, officer or director
of a company or other entity, or as an employee, agent, trustee, manager,
associate or consultant of any person, partnership, corporation or other entity.
As of the
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date hereof, the Company anticipates that it will engage principally in the
business of providing information technology services to a variety of
industries, but the provisions of this Section 8.(c) shall apply to any business
in which the Company is engaged at the termination of Employee's employment.
(d) Employee Agrees to Limitations. Employee agrees that the
limitations set forth herein on his rights to compete with the Company and its
affiliates are reasonable and necessary for the protection of the Company and
its affiliates. In this regard, Employee specifically agrees that the
limitations as to period of time and geographic area, as well as all other
restrictions on his activities specified herein, are reasonable and necessary
for the protection of the Company and its affiliates. In particular, Employee
acknowledges that the parties anticipate that the Employee will be actively
seeking markets for the Company's products throughout the United States and in
other countries of the world during Employee's employment with the Company. In
the event that the provisions of this Agreement should ever be legally held to
exceed the scope of business, time or geographic limitations permitted by
applicable law, such provisions shall be and are hereby reformed to the maximum
scope of business, time or geographic limitations permitted by applicable law.
(e) Affiliates. For purposes of this Agreement, an "affiliate"
of the Company is any person or entity that directly, or indirectly through one
or more intermediaries, controls, or is controlled by, or is under common
control with, the Company.
(f) Specific Performance. Employee agrees that the remedy at
law for any breach by him of this Section 8 will be inadequate and that the
Company shall also be entitled to injunctive relief.
9. Confidential Information and Results of Services.
(a) Treatment of Confidential Information. Employee agrees
that during the term of this Agreement, and for five (5) years after his
termination of employment, he will not use or disclose, without the prior
consent of the Company, the Confidential Information (as hereinafter defined)
owned by or subject contractually to be safeguarded by the Company, or any of
its affiliates, and further agrees, that he will return to the Company all
written, printed, or other physical presentation or holding of materials in his
possession embodying such Confidential Information. Employee acknowledges that
any information and materials received by the Company from third parties in
confidence (or subject to non-disclosure or similar covenants) shall be deemed
to be and shall be Confidential Information within the meaning of this Section
9. As a material inducement to the Company to employ (or to continue to employ)
Employee and to pay to Employee compensation for such services to be rendered to
the Company by Employee (it being understood and agreed by the parties hereto
that such compensation shall also be paid and received in consideration hereof),
Employee covenants and agrees that Employee shall not, except with the prior
written consent of the Company, or unless Employee is acting as an employee of
the Company solely for the benefit of the Company in connection with the
Company's business and in accordance with the Company's business practices and
employee policies, at any time during or following the term of Employee's
employment by the Company, directly or indirectly, disclose, divulge, reveal,
report, publish, transfer or use, for any purpose whatsoever, any of such
information which has been obtained by or disclosed to Employee as a result of
Employee's employment by the Company.
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(b) Definition of Confidential Information. For purposes of
this Agreement, "Confidential Information" includes information conveyed or
assigned to the Company by Employee or conceived, compiled, created, developed,
discovered or obtained by Employee from and during his employment relationship
with the Company, whether solely by the Employee or jointly with others, which
concerns the affairs of the Company or its affiliates and which the Company
could reasonably be expected to desire be held in confidence, or the disclosure
of which would likely be materially embarrassing, detrimental or disadvantageous
to the Company or its affiliates and without limiting the generality of the
foregoing includes information relating to inventions, and the trade secrets,
technologies, algorithms, products, services, systems, programs (including,
without limitation, the Company's computer software programs), procedures,
manuals, confidential reports and communications, finances, business plans,
marketing plans, legal affairs, supplier lists, client lists, potential clients,
business prospects, business opportunities, personnel assignments, contracts and
assets of the Company and information made available to the Company by other
parties under a confidential relationship. Confidential Information, however,
shall not include information (i) which is, at the time in question, in the
public domain through no wrongful act of Employee, (ii) which is later disclosed
to Employee by one not under obligations of confidentiality to the Company or
Employee, (iii) which the Company has expressly given Employee the right to
disclose pursuant to written agreement, or (iv) which is required by court or
governmental order, law or regulation to be disclosed; provided, that Employee
shall first have given prompt notice to the Company of any such possible or
prospective order (or proceeding pursuant to which any such order may result)
such that the Company shall have been afforded a reasonable opportunity to
prevent or limit any such disclosure. Employee agrees that the remedy at law for
any breach by him of this Section 9 will be inadequate and that the Company
shall also be entitled to injunctive relief.
10. Definition of Intellectual Property.
(a) For purposes of this Agreement, the term "Intellectual
Property" shall mean all of the information referred to in Section 9 hereof and
all of the following materials and information (whether or not reduced to
writing and whether or not patentable or protectible by copyright) which
Employee receives, receives access to, conceives or develops or has received,
received access to, conceived or developed, in whole or in part, directly or
indirectly, in connection with Employee's employment with the Company and any
assistance to affiliates of the Company and related to the Company's and its
affiliates scope of business (in any capacity, whether executive, managerial,
planning, technical, sales, research, development, manufacturing, engineering or
otherwise) or through the use of any of the Company's facilities or resources:
(b) Discoveries, concepts, and ideas including, without
limitation, the nature and results of research and development activities,
processes, formulas, inventions, computer-related equipment or technology,
techniques, "know-how," designs, drawings and specifications;
(c) Production processes, marketing techniques and
arrangements, mailing lists, purchasing information, pricing policies, quoting
procedures, financial information, customer and prospect names and requirements,
employee, customer, supplier and distributor data and other materials or
information relating to the Company's business and activities and the manner in
which the Company does business;
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(d) Applications, operating systems, data bases,
communications and other computer software, whether now or hereafter existing
and developed for use on any operating system, and all modifications,
enhancements and versions and all options available with respect thereto, and
all future products developed or derived therefrom;
(e) Source and object codes, flowcharts, algorithms, coding
sheets, routines, sub-routines, compilers, assemblers, design concepts and
related documentation and manuals;
(f) Any other materials or information related to the business
or activities of the Company which are not generally known to others engaged in
similar businesses or activities; and
(g) Patents, trademarks, copyrights, trade secrets, all
inventions, whether or not patentable, and any product, drawing, design,
recording, computer software program, writing, literary work or other author's
work, in any other tangible form developed in whole or in part by Employee
during the term of this Agreement;
(h) All ideas, inventions, techniques, modifications,
processes, or improvements which are derived from or relate to Employee's access
to or knowledge of any of the above enumerated materials and information, or
which are created, conceived, developed, purchased or acquired by Employee,
either solely or in conjunction with others, during the term of Employee's
employment with the Company which relate to, or are useful in, the business
being conducted or proposed to be conducted by the Company or its affiliates,
and any such item created by the Employee, either solely or in conjunction with
others, following termination of the Employee's employment with the Company,
that is based upon or uses Intellectual Property.
(i) Failure to xxxx any of the Intellectual Property as
confidential, proprietary or Intellectual Property shall not affect its status
as part of the Intellectual Property under the terms of this Agreement.
(j) For purposes of this Agreement, the term "Intellectual
Property" shall not apply to any ideas, inventions, techniques, modifications,
processes, or improvements for which no equipment, supplies, facility or
Intellectual Property of the Company was used, which was developed entirely on
Employee's own time, and which does not (i) relate to the business of the
Company, (ii) relate to the Company's actual or demonstrably anticipated
research or development or (iii) result from any work performed by Employee for
the Company.
11. Ownership of Information.
(a) Employee covenants and agrees that all right, title and
interest in any Intellectual Property shall be and shall remain the exclusive
property of the Company. Employee agrees immediately to disclose to the Company
all Intellectual Property developed in whole or in part by Employee during the
term of Employee's employment with the Company and to assign to the Company any
right, title or interest Employee may have in such Intellectual Property.
Employee
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agrees to execute any instruments and to do all other things reasonably
requested by the Company (both during and after Employee's employment with the
Company) in order to vest more fully in the Company all ownership rights in
those items transferred by Employee to the Company;
(b) Employee will not contest the validity of any invention,
any copyright, any trademark or any mask work registration owned by or vesting
in the Company under this Agreement;
(c) Employee will execute, acknowledge, and deliver to the
Company such applications, assignments (including patent applications and
assignments), and other documents as the Company may request in order to apply
for and obtain patents or other registrations with respect to any Intellectual
Property in the United States and any foreign jurisdictions;
(d) Employee will sign all other papers necessary to carry
out the above obligations; and
(e) Employee will give testimony and render any other
assistance but without expense to the Employee in support of the Company's
rights to any Intellectual Property.
(f) If any one or more of the foregoing items are protectible
by copyright and are deemed in any way to fall within the definition of "work
made for hire," as such term is defined in 17 U.S.C. Section 101, such work
shall be considered a "work made for hire," the copyright of which shall be
owned solely, completely and exclusively by the Company. If any one or more of
the aforementioned items are protectible by copyright and are not considered to
be included in the categories of works covered by the "work made for hire"
definition contained in 17 U.S.C. Section 101, such items shall be deemed to be
assigned and transferred completely and exclusively to the Company by virtue of
the execution of this Agreement.
12. Covenants Not to Hire Employees. It is recognized and understood by
the parties hereto that the employees of the Company are an integral part of the
Company's business and that it is extremely important for the Company to use its
maximum efforts to prevent the Company from losing employees. It is therefore
understood and agreed by the parties hereto that, because of the nature of the
business of the Company, it is necessary to afford fair protection to the
Company from the loss of any such employees. Consequently, as a material
inducement to the Company to employ (or continue to employ) Employee, Employee
covenants and agrees that, for the period commencing on the date of Employee's
termination of employment for any reason whatsoever and ending two (2) years
after Employee's termination of employment with the Company, Employee shall not,
directly or indirectly, hire or engage or attempt to hire or engage any
individual who shall have been an employee of the Company at any time during the
one (1) year period prior to the date of Employee's termination of employment
with the Company, whether for or on behalf of Employee or for any entity in
which Employee shall have a direct or indirect interest (or any subsidiary or
affiliate of any such entity), whether as a proprietor, partner, co-venturer,
financier, investor or stockholder, director, officer, employer, employee,
servant, agent, representative or otherwise. If Employee violates this Section
12, Employee agrees that, as part of the damages recoverable by the Company,
Employee shall pay to the Company a liquidated damages amount equal to the
compensation of the employee
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of the Company solicited away from employment with the Company by Employee for
the twelve months preceding the date of said employee's termination from the
Company.
13. Injunctive Relief. Employee understands and agrees that the Company
shall suffer irreparable harm in the event that Employee breaches any of
Employee's obligations under this Agreement and that monetary damages shall be
inadequate to compensate the Company for such breach. Accordingly, Employee
agrees that, in the event of a breach or threatened breach by Employee of any of
the provisions of this Agreement, the Company, in addition to and not in
limitation of any other rights, remedies or damages available to the Company at
law or in equity, shall be entitled to a temporary restraining order,
preliminary injunction and permanent injunction in order to prevent or to
restrain any such breach by Employee, or by any or all of Employee's partners,
co-venturers, employers, employees, servants, agents, representatives and any
and all persons directly or indirectly acting for, on behalf of or with
Employee.
14. Materials. All notes, data, tapes, reference items, sketches,
drawings, memoranda, records and other materials in any way relating to any of
the Confidential Information or Intellectual Property or to the Company's
business shall belong exclusively to the Company and Employee agrees to turn
over to the Company all copies of such materials in Employee's possession or
under Employee's control at the request of the Company or, in the absence of
such a request, upon the termination of Employee's employment with the Company.
15. Remedies. Employee covenants and agrees that, if Employee shall
violate any of Employee's covenants or agreements under this Agreement, the
Company shall be entitled to an accounting and repayment from Employee of all
profits, compensation, royalties, commissions, remunerations or other payments
(collectively "Payments") which Employee realizes as a result of the violative
actions. Employee shall also reimburse the Company for all reasonable costs and
expenses (including reasonable attorneys fees) incurred in pursuing its rights
hereunder if Employee has violated this Agreement. Such remedy shall be in
addition to and not in limitation of any injunctive relief or other rights or
remedies to which the Company is or may be entitled at law or in equity or
otherwise under this Agreement, provided that recovery of any Payments shall be
reduced by the amount of any compensatory damages otherwise recovered.
16. Employee's Status. Except as expressly provided by terms of this
Agreement, nothing in this Agreement shall be construed as constituting a
commitment, guarantee, agreement or understanding of any kind or nature that the
Company shall continue to employ Employee, nor shall this Agreement affect in
any way the right of the Company to terminate the employment of Employee at any
time and for any reason whatsoever. No change of Employee's duties as an
employee of the Company shall result in, or be deemed to be, a modification of
the terms of this Agreement.
17. Notice. All notices, requests, demands and other communications
required by or permitted under this Agreement shall be in writing and shall be
sufficiently delivered if delivered by hand, by courier service, or sent by
registered or certified mail, postage prepaid, to the parties at their
respective addresses listed below:
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(a) If to the Employee, to the address set out in the
beginning of this Agreement;
(b) If to the Company:
Software Consulting Services America, Inc.
Attn.: President
000 Xxxxx Xxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxxxx 00000
(c) With a copy to:
BrightStar Information Technology Group, Inc.
Attn.: President
00000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Either party may change such party's address by such notice to
the other parties.
18. Assignment. This Agreement is personal to the Employee, and he
shall not assign any of his rights or delegate any of his duties hereunder
without the prior written consent of the Company. Neither the employee nor his
spouse will have the right to commute, encumber, or otherwise dispose of any
prospective payments under this Agreement. The Company shall have the right to
assign this Agreement to a successor in interest in connection with a merger,
sale of substantially all assets, or the like; provided however, that an
assignment of this Agreement to an entity with operations, products or services
outside of the industries in which the Company is then active shall not be
deemed to expand the scope of Employee's covenant not to compete with such
operations, products or services without Employee's written consent.
19. Survival. The provisions of Sections 7 through 15 of this Agreement
shall survive the termination of the Employee's employment hereunder in
accordance with their terms, provided that all provisions of this Agreement
shall terminate five years after termination of employment (if not already
expired in accordance with their specific time of applicability) except with
respect to the resolution of any claims asserted prior to such termination.
20. Applicable Law. The substantive laws of the State of California,
excluding any law, rule or principle which might refer to the substantive law of
another jurisdiction, will govern the interpretation, validity and effect of
this Agreement without regard to the place of execution or the place for
performance thereof.
21. Binding Upon Successors. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective heirs,
legal representatives, successors and permitted assigns.
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22. Entire Agreement. This Agreement constitutes the entire agreement
between the Company and the Employee with respect to the terms of employment of
the Employee by the Company and supersedes all prior agreements and
understandings, whether written or oral, between them concerning such terms of
employment.
23. Waiver and Amendments; Cumulative Rights and Remedies.
(a) This Agreement may be amended, modified or supplemented,
and any obligation hereunder may be waived, only by a written instrument
executed by the parties hereto. The waiver by either party of a breach of any
provision of this Agreement shall not operate as a waiver of any subsequent
breach.
(b) No failure on the part of any party to exercise, and no
delay in exercising, any right or remedy hereunder shall operate as a waiver
hereof, nor shall any single or partial exercise of any such right or remedy by
such party preclude any other or further exercise thereof or the exercise of any
other right or remedy. All rights and remedies hereunder are cumulative and are
in addition to all other rights and remedies provided by law, agreement or
otherwise.
(c) The obligations of the parties hereto and such parties'
rights and remedies hereunder are in addition to all other obligations of such
parties, and all rights and remedies of such parties, created pursuant to any
other agreement.
24. Construction. Each party to this Agreement has had the opportunity
to review this Agreement with legal counsel. This Agreement shall not be
construed or interpreted against any party on the basis that such party drafted
or authored a particular provision, parts of or the entirety of this Agreement.
25. Severability. In the event that any provision or provisions of this
Agreement is held to be invalid, illegal or unenforceable by any court of law or
otherwise, the remaining provisions of this Agreement shall nevertheless
continue to be valid, legal and enforceable as though the invalid or
unenforceable parts had not been included therein. In addition, in such event
the parties hereto shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible with respect
to those provisions which were held to be invalid, illegal or unenforceable.
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IN WITNESS WHEREOF, the Company and the Employee have executed this
Agreement under seal on the date first above written, to be effective as of
April ___, 1998.
COMPANY:
SOFTWARE CONSULTING SERVICES AMERICA, INC.
By: /S/XXXXXX X. X'XXXXXX
---------------------------------------
Xxxxxx X. X'Xxxxxx, Vice President
EMPLOYEE:
/S/XXXXXXX X. XXXX
-------------------------------------------
Xxxxxxx X. Xxxx
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SCHEDULE A TO EMPLOYMENT AGREEMENT
Xxxxxxx X. Xxxx
1. Duties: President
2. Compensation Provisions: Annual Salary: $170,000
Bonus for 1998 in accordance with
the bonus arrangements currently in
effect with the Company consistent
and customary with prior Company
practice.
3. Monthly automobile allowance: $1,000
4. Annual Number of Vacation Days: 15 days
5. Annual Number of Days for Personal Time Off: 5 days
