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EXHIBIT 10.8
RETENTION AGREEMENT
This Retention Agreement (this "Agreement") is entered into as of
April 4, 2000, by and between Xxxx Xxxxxx ("Employee") and Digital Commerce
Corporation, a Delaware corporation ("Employer").
W I T N E S S E T H:
WHEREAS, Employer wishes to employ Employee and Employee wishes to
accept such employment; and
WHEREAS, the parties each desire to establish and set forth the terms
and conditions of Employee's employment with Employer.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. EMPLOYMENT. Employer agrees to employ Employee and Employee agrees
to be employed by Employer, for the term described on Annex A attached hereto
and incorporated herein by reference.
2. DUTIES AND RESPONSIBILITIES. Upon execution of this Agreement,
Employee shall diligently render his or her services to Employer in accordance
with the directives of Employer's Board of Directors and/or superior officers,
and shall use his or her best efforts and good faith in accomplishing such
directives. Employee agrees to devote his or her best efforts and substantially
all of his or her business time, abilities and attention to the business of
Employer. In addition, Employee shall perform the duties described on Annex B
attached hereto and incorporated herein by reference.
3. COMPENSATION. During the Employment Period (as defined in Annex A),
Employer will pay to Employee compensation in the amounts and form specified in
Annex C attached hereto and incorporated herein by reference, payable in
semi-weekly installments or otherwise as is the policy of Employer from time to
time with respect to its employees on a general basis. In addition to such
compensation, Employee will be entitled to the benefits, if any, described in
Annex C during the Employment Period.
4. REIMBURSEMENT FOR EXPENSES. Employer shall reimburse Employee, in
accordance with Employer's normal reimbursement policy, for all reasonable
expenses incurred by Employee in the performance of Employee's duties pursuant
to this Agreement, but only after Employee submits a written, itemized and
signed list of such expenses on a form supplied by Employer for such purpose.
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5. TERMINATION.
(a) Employer may terminate Employee's employment if he or she is
unable to perform the essential functions of his or her
position with a reasonable accommodation for ninety (90)
consecutive days or for a total of one hundred twenty (120)
days during any twelve (12) month period.
(b) Employer may terminate Employee's employment under this
Agreement at any time and without prior written notice to
Employee for Cause (defined below) by delivery of written
notice of termination to Employee. "Cause" is defined to
include:
(1) fraud, misappropriation or embezzlement involving
Employer;
(2) felony conviction or conviction of a crime involving
moral turpitude or which, in the opinion of the Board
of Directors (in their sole discretion), brings
Employee or Employer into disrepute or causes
material harm to Employer's business, customer or
supplier relations or financial condition or
prospects;
(3) Employee's failure to obey or carry out (A)
reasonable directives from Employer senior management
or (B) Employer's company policies;
(4) inability or material failure by Employee to
substantially perform his or her duties hereunder;
(5) any material breach of this Agreement by Employee; or
(6) any material breach or threatened material breach of
(i) the Confidentiality Agreement and/or (ii) the
Noncompetition Agreement entered into by and between
Employer and Employee as of the date hereof pursuant
to the provisions of Paragraphs 6 and 7 of this
Agreement;
provided, however, in the case of subparagraphs (3), (4) and
(5) of this Section 5(b), the Employee shall have been
informed in writing of the act, or failure to act,
constituting Cause for termination, and shall have failed to
cure such act or failure to act within thirty (30) days
following receipt of written notice thereof.
(c) Employer may terminate Employee's employment under this
Agreement at any time and without prior written notice to
Employee without Cause upon payment of the severance benefit
set forth in Annex D attached hereto.
(d) Employee's employment under this Agreement shall automatically
terminate upon Employee's death.
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(e) Employee may terminate his or her employment hereunder upon
giving at least ninety (90) days' prior written notice. In the
event that Employee gives notice of termination of this
Agreement pursuant to this subsection, Employer shall have the
right to terminate Employee prior to the end of such ninety
(90) day period upon payment of Employee's compensation for
such ninety (90) day period.
6. CONFIDENTIAL INFORMATION. Employee and Employer shall enter into a
Confidentiality/Intellectual Property Agreement in the form of Annex E attached
hereto, the terms of which are incorporated herein by this reference.
7. COVENANT NOT TO COMPETE. Employee and Employer shall enter into a
Noncompetition Agreement in the form of Annex F attached hereto, the terms of
which are incorporated herein by this reference.
8. INDEPENDENT COVENANTS. It is understood by and between the parties
hereto that the restrictive covenants set forth in the Confidentiality Agreement
and the Noncompetition Agreement are essential elements of this Agreement, and
that, but for the agreement of the Employee to comply with such covenants, the
Employer would not have agreed to enter into this Agreement. Such covenants by
the Employee shall be construed as agreements independent of any other provision
in this Agreement. The existence of any claim or cause of action of the Employee
against the Employer, whether predicated on this Agreement, or otherwise, shall
not constitute a defense to the enforcement by the Employer of such covenants.
9. RIGHT TO ENTER AGREEMENT. Employee represents and covenants to
Employer that he or she has full power and authority to enter into this
Agreement, the Confidentiality Agreement and the Non-Competition Agreement
(hereinafter collectively referred to as the "Agreements") and that the
execution, delivery and/or performance of the Agreements will not breach or
constitute a default of any other agreement or contract to which he or she is a
party or by which he or she is bound.
10. ASSIGNMENT. This Agreement and the rights and/or obligations of
Employee under this Agreement may not be assigned or delegated. Employer may
assign and/or delegate its rights and/or obligations hereunder to a subsidiary
or affiliate of Employer or to a successor corporation in the event of merger,
consolidation or transfer or sale of all or substantially all of the assets of
Employer or of Employer's business.
11. NOTICES. All notices, demands, requests or other communications
that may be or are required to be given, served or sent by either party to the
other party pursuant to this Agreement will be in writing and will be mailed by
first-class, registered or certified mail, return receipt requested, postage
prepaid, or transmitted by hand delivery, telegram or facsimile transmission
addressed as follows:
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(a) If to Employer: Digital Commerce Corporation
000 Xxxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile Transmission No.: (000) 000-0000
Attn: Xxxx Xxxxxx, President
with a copy (which will
not constitute notice) to: Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
5400 Renaissance Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile Transmission No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxx, Xx., Esq.
(b) If to Employee: Xxxx Xxxxxx
00000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile Transmission No.:
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with a copy (which will
not constitute notice) to:
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------------------------------------------
------------------------------------------
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Facsimile Transmission No.:
---------------
Attn:
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Either party may designate by written notice a new address to which any notice,
demand, request or communication may thereafter be given, served or sent. Each
notice, demand, request or communication that is mailed, delivered or
transmitted in the manner described above will be deemed sufficiently given,
served, sent and received for all purposes at such time as it is delivered to
the addressee with the return receipt, the delivery receipt, the affidavit of
messenger or (with respect to a facsimile transmission) the answer back being
deemed conclusive evidence of such delivery or at such time as delivery is
refused by the addressee upon presentation.
12. GENDER. Words of any gender used in this Agreement will be held and
construed to include any other gender, and words in the singular number will be
held to include the plural, unless the context otherwise requires.
13. WAIVER. No failure or delay in exercising any right hereunder will
operate as a waiver thereof, nor will any single or partial exercise thereof
preclude any other or further exercise or the exercise of any other right.
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14. SEVERABILITY. If any of the provisions of this Agreement are
determined to be invalid or unenforceable, such invalidity or unenforceability
will not invalidate or render unenforceable the remainder of this Agreement, but
rather the entire Agreement will be construed as if not containing the
particular invalid or unenforceable provision or provisions, and the rights and
obligations of the parties will be construed and enforced accordingly. The
parties acknowledge that if any provision of this Agreement is determined to be
invalid or unenforceable, it is their desire and intention that such provision
be reformed and construed in such manner that it will, to the maximum extent
practicable, be deemed to be valid and enforceable.
15. ENTIRE AGREEMENT. Except for that certain Employment Agreement,
dated as of January 1, 1999, between Employer and Employee, that certain
Indemnification Agreement dated March 13, 2000 and prior options, bonuses or
similar awards made prior to the date hereof (the "Prior Agreements"), the terms
and provisions contained in the Agreements shall constitute the entire agreement
between the parties with respect to Employee's employment by Employer during the
Employment Period. Except for the Prior Agreements, the Agreements replace and
supersede any and all existing agreements entered into between Employee and
Employer relating generally to the same subject matter, if any, and shall be
binding upon Employee's heirs, executors, administrators or other legal
representatives or assigns. In no event will this Agreement be deemed to modify
or alter any benefits provided to Employee pursuant to the Prior Agreements.
Notwithstanding any provision herein to the contrary, in the event of any
conflict between any provision of this Agreement (and the agreements annexed
thereto) and any provision of any Prior Agreement, as such may be amended from
time to time, all such agreements shall be interpreted so that the provisions
providing the more favorable treatment to the Employee shall govern. In no event
will Employer be obligated to duplicate benefits provided under any such
agreements.
16. MODIFICATION OF AGREEMENT. This Agreement may not be changed or
modified or released or discharged or abandoned or otherwise terminated in whole
or in part, except by an instrument in writing signed by Employee and an officer
or other authorized representative of Employer.
17. UNDERSTANDING OF AGREEMENT. Employee represents and warrants that
he or she has read and understands each and every provision of this Agreement,
and Employee understands that he or she is free to obtain advice from legal
counsel of choice, if necessary and desired, in order to interpret any and all
provisions of this Agreement, and that Employee has freely and voluntarily
entered into this Agreement.
18. SURVIVAL. The terms of this Agreement shall remain in full force
and effect during the continuation of Employee's employment. The Confidentiality
Agreement, the Noncompetition Agreement and paragraphs 10 through 21 of this
Agreement will survive the termination of Employee's employment for any reason.
19. APPLICABLE LAW. THIS AGREEMENT AND THE AGREEMENTS, INSTRUMENTS AND
DOCUMENTS CONTEMPLATED HEREBY WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF
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VIRGINIA (EXCLUSIVE OF CONFLICTS OF LAW PRINCIPLES) AND WILL, TO THE MAXIMUM
EXTENT PRACTICABLE, BE DEEMED TO CALL FOR PERFORMANCE IN ALEXANDRIA, VIRGINIA.
COURTS WITHIN THE STATE OF VIRGINIA WILL HAVE JURISDICTION OVER ANY AND ALL
DISPUTES BETWEEN THE PARTIES HERETO, WHETHER IN LAW OR EQUITY, ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE AGREEMENTS, INSTRUMENTS AND DOCUMENTS
CONTEMPLATED HEREBY. THE PARTIES CONSENT TO AND AGREE TO SUBMIT TO THE
JURISDICTION OF SUCH COURTS. VENUE IN ANY SUCH DISPUTE, WHETHER IN FEDERAL OR
STATE COURT, WILL BE LAID IN ALEXANDRIA, VIRGINIA. EACH OF THE PARTIES HEREBY
WAIVES, AND AGREES NOT TO ASSERT IN ANY SUCH DISPUTE, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY CLAIM THAT (i) SUCH PARTY IS NOT PERSONALLY
SUBJECT TO THE JURISDICTION OF SUCH COURTS, (ii) SUCH PARTY AND SUCH PARTY'S
PROPERTY IS IMMUNE FROM ANY LEGAL PROCESS ISSUED BY SUCH COURTS OR (iii) ANY
LITIGATION COMMENCED IN SUCH COURTS IS BROUGHT IN AN INCONVENIENT FORUM.
20. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which will be deemed to be an original and all of which
will be deemed to be a single agreement. This Agreement will be considered fully
executed when all parties have executed an identical counterpart,
notwithstanding that all signatures may not appear on the same counterpart.
21. THIRD PARTIES. Except as expressly set forth or referred to in this
Agreement, nothing in this Agreement is intended or will be construed to confer
upon or give to any party other than the parties to this Agreement and their
successors and permitted assigns, if any, any rights or remedies under or by
reason of this Agreement.
22. HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
[BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EMPLOYEE: EMPLOYER:
DIGITAL COMMERCE CORPORATION
By: /s/ Xxxx Xxxxxxxxxx
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Name: /s/ Xxxx Xxxxxx Name: Xxxx Xxxxxxxxxx
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Xxxx Xxxxxx Title: Director
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Dated: April 4, 2000 Dated: April 4, 2000
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ANNEX A
TERM OF EMPLOYMENT
Employer agrees to employ Employee and Employee agrees to be employed
by Employer, for a term as described in that certain Employment Agreement
between Employer and Employee dated as of January 1, 1999.
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ANNEX B
DUTIES OF EMPLOYEE
The duties of Employee will be as described in that certain Employment
Agreement between Employer and Employee dated as of January 1, 1999.
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ANNEX C
COMPENSATION AND BENEFITS
Employee shall be entitled to such compensation and benefits as are
described in that certain Employment Agreement between Employer and Employee
dated as of January 1, 1999.
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ANNEX D
SEVERANCE BENEFIT
Employee shall be entitled to such severance benefits as are set forth
in that certain Employment Agreement between Employer and Employee dated as of
January 1, 1999.
ANNEX E
CONFIDENTIALITY/INTELLECTUAL PROPERTY AGREEMENT
This Confidentiality Agreement (this "Agreement"), is entered into as
of April 4, 2000, by and between Xxxx Xxxxxx ("Employee") and Digital Commerce
Corporation, a Delaware corporation (the "Company").
RECITALS
WHEREAS, Employee is employed by the Company;
WHEREAS, in the course of Employee's employment with the Company,
Employee may have access to or have disclosed to him or her Confidential
Information (as hereinafter defined); and
WHEREAS, the parties each desire to establish and set forth Employee's
obligations with respect to Confidential Information and certain other matters.
NOW THEREFORE, in consideration of the premises, the mutual
representations, warranties and covenants set forth herein and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
Definitions. For the purposes of this Agreement, the following words shall
have the following meanings:
"Affiliated Entity" means any entity which controls, is controlled by or is
under common control with the Company.
"Copyright Registrations" means any domestic or foreign copyright registrations
and applications for such registrations, including all or any portion of a
Copyright Work or other subject matter identified by any such registration or
application.
"Copyright Works" means materials for which copyright protection may be obtained
including, but not limited to: literary works (including all written material),
computer programs, artistic and graphic works (including designs, graphs,
drawings, blueprints and other works), recordings, models, photographs, slides,
motion pictures and audio-visual works, regardless of the form or manner in
which documented or recorded;
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"Inventions" means inventions (whether patentable or not), discoveries,
improvements, designs and ideas (whether or not shown or described in writing or
reduced to practice) and may include Confidential Information or Copyright
Works;
"Patent Applications" means any application to obtain a
Patent, including any Inventions or other subject matter described or
protected by such application.
"Patents" means any domestic or foreign patents, including any
Inventions or other subject matter described or protected by such
patents.
Confidential Information.
Employee acknowledges that during his or her employment with
the Company, he or she will be provided with and become acquainted with
various trade secrets and other proprietary/confidential information
which are owned by the Company or any Affiliated Entity and/or their
respective customers and vendors and which are used in the operation of
the business of the Company or an Affiliated Entity, including, without
limitation, one or more of the following types of information: customer
lists; the nature and type of services rendered to customers; fees paid
by customers; methodologies; computer code and programs; formulas;
processes; compilations of information; drawings; results of research
proposals; job notes; reports; records; trade secrets; and
specifications. Employee agrees that he or she will not disclose any
trade secrets or other proprietary/confidential information owned by
the Company or any Affiliated Entity and/or their respective customers
and vendors whether or not listed by way of example above
(collectively, the "Confidential Information"), directly or indirectly,
or use such Confidential Information in any way, either during the term
of this Agreement or at any time thereafter, except as may be required
in the course of his or her employment with the Company or by law.
Employee shall not, without the prior written approval of the
Company, publish or authorize or purport to authorize anyone to
publish, either during Employee's employment with the Company or
subsequent thereto, any Confidential Information acquired in the course
of his or her employment.
The prohibitions of this paragraph shall not apply to any
Confidential Information which (i) becomes generally available to the
public other than as a result of disclosure by Employee, (ii) was
available to Employee on a non-confidential basis prior to its
disclosure to Employee by the Company, or (iii) becomes available to
Employee on a non-confidential basis from a source other than the
Company when such source is entitled, to the best of Employee's
knowledge, to make the disclosure to Employee.
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Inventions, Patents, and Copyright Works.
Notification of the Company. Upon conception by Employee
during the period of his or her employment by the Company, all
Inventions, Confidential Information, and Copyright Works (1) which
relate to the actual or anticipated business, research or activities of
the Company or any Affiliated Entity at the time of conception; or (2)
which, directly or indirectly, result from or are suggested by any work
which Employee has done or may do for or on behalf of the Company or
any Affiliated Entity and/or their respective customers and vendors; or
(3) which are developed, tested, improved or investigated either in
part or entirely on time for which Employee was paid by the Company, or
using any resources of the Company (such Inventions, Confidential
Information and Copyright Works, together with the Inventions,
Confidential Information, Copyright Works, Copyright Registrations
and/or Patents referenced in subsection (j) below, are hereinafter
collectively referred to as the "Employee Developed Intellectual
Property") shall become the property of the Company whether or not
patent or copyright registration applications are filed for such
subject matter. Employee agrees to communicate to the Company promptly
and fully all Employee Developed Intellectual Property made, designed,
created, or conceived by Employee (whether made, designed, created, or
conceived solely by Employee or jointly with others).
Transfer of Rights. Employee agrees, during his or her
employment by the Company, to assign and transfer to the Company all of
Employee's right, title and interest in all Employee Developed
Intellectual Property prepared, made or conceived by or on behalf of
Employee (whether solely or jointly with others) during the period of
his or her employment by the Company. Employee also agrees to do all
things necessary to transfer to the Company all of Employee's right,
title and interest in and to all such Employee Developed Intellectual
Property as the Company may request, on such forms as the Company may
provide, at any time during or after Employee's employment by the
Company. This subsection shall continue in full force and effect after
termination of Employee's employment by the Company and after the
termination of this Agreement. Without limiting Employee's obligations
under any other provision of this Agreement, Employee will promptly and
fully assist the Company during and subsequent to his or her employment
in every lawful way to obtain, protect and enforce Employee's patent,
copyright, trade secret or other proprietary rights with respect to
Employee Developed Intellectual Property in any and all countries or
other jurisdictions. The Company will reimburse Employee for reasonable
expenses incurred by Employee in connection with such post-employment
assistance. Employee waives, to the fullest extent permitted by law,
all "moral rights" of Employee with respect to Employee Developed
Intellectual Property assigned and/or transferred to the Company.
Exclusions. No provision in this Agreement is intended to
require assignment of any of Employee's rights in an Invention, Patent
or Copyright Work, for which no equipment, supplies, facilities,
Confidential Information, Copyright Works, Inventions or Patents of the
Company was used, and which was (1) developed entirely on Employee's
own time; (2) does not relate to the business of the Company or any
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Affiliated Entity or to the actual or demonstrably anticipated research
or development of the Company or any Affiliated Entity; and (3) does
not result from any work performed by Employee for the Company or
assigned to Employee by the Company.
Rights in Copyrights. Unless otherwise agreed in writing by
the Company, all Copyright Works prepared wholly or partially by
Employee (alone or jointly with others) within the scope of his or her
employment by the Company, shall be deemed a "work made for hire" under
the copyright laws and shall be owned by the Company. Employee
understands that any assignment or release of such works can only be
made by the Company. During the period of his or her employment by the
Company, Employee shall not assist or work with any third party that is
not an employee of the Company to create or prepare any Copyright Works
without the prior written consent of the Company.
Assistance in Preparation of Applications. Without limiting
Employee's obligations under any other provision of this Agreement,
Employee will promptly and fully assist, if requested by the Company,
in the preparation and filing of Patent Applications and Copyright
Registrations in any and all countries or other jurisdictions selected
by the Company and will assign to the Company all of Employee's right,
title, and interest in and to such Patent Applications and Copyright
Registrations, as well as all Inventions or Copyright Works to which
such Patent Applications and Copyright Registrations pertain, to enable
any such properties to be prosecuted under the direction of the Company
and to ensure that any Patent or Copyright Registration obtained will
validly issue to the Company. This subsection shall continue in full
force and effect after termination of Employee's employment by the
Company and after the termination of this Agreement.
Execute Documents. Without limiting Employee's obligations
under any other provision of this Agreement, Employee will promptly
sign any and all lawful papers, take all lawful oaths, and do all
lawful acts, including testifying, at the request of the Company, in
connection with the procurement, grant, enforcement, maintenance,
exploitation or defense against assertion of any patent, trademark,
copyright, trade secret or related rights, including applications for
protection or registration thereof. Such lawful papers include, but are
not limited to, any and all powers, assignments, affidavits,
declarations and other papers deemed by the Company to be necessary or
advisable. This subsection shall continue in full force and effect
after termination of Employee's employment by the Company and after the
termination of this Agreement.
Keep Records. Without limiting Employee's obligations under
any other provision of this Agreement, Employee will keep and regularly
maintain adequate and current written records of all Inventions,
Confidential Information, and Copyright Works he or she participates in
creating, conceiving, developing or manufacturing. Such records shall
be kept and maintained in the form of notes, sketches, drawings,
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reports or other documents relating thereto, bearing at least the date
of preparation and the signature or name of each person contributing to
the subject matter reflected in the record. Such records, to the extent
they pertain to Employee Developed Intellectual Property, shall be and
shall remain the exclusive property of the Company and shall be made
available to the Company at all times. All of such records pertaining
to work produced pursuant to subsection (c) hereof will at all times
remain the property of Employee. This subsection shall continue in full
force and effect after termination of Employee's employment by the
Company and after the termination of this Agreement.
Return of Documents, Equipment, Etc. Without limiting
Employee's obligations under any other provision of this Agreement, all
writings, records, and other documents and things comprising,
containing, describing, discussing, explaining or evidencing any
Employee Developed Intellectual Property and all equipment, components,
parts, tools and the like in Employee's custody or possession that have
been obtained or prepared in the course of Employee's employment by the
Company shall be the exclusive property of the Company, shall not be
copied and/or removed from the premises of the Company, except in
pursuit of the business of the Company, and shall be delivered to the
Company, without Employee retaining any copies, upon notification of
the termination of Employee's employment by the Company or at any other
time requested by the Company. The Company shall have the right to
retain, access, and inspect all property of Employee of any kind in the
office, work area, and on the premises of the Company upon termination
of Employee's employment by the Company and at any time during
employment by the Company, to ensure compliance with the terms of this
Agreement. This subsection shall continue in full force and effect
after termination of Employee's employment by the Company and after the
termination of this Agreement.
Other Contracts. Employee represents and warrants that he or
she is not a party to any existing contract relating to the granting or
assignment to others of any interest in Inventions, Confidential
Information, Copyright Works or Patents hereafter made by Employee
except insofar as copies of such contracts, if any, are attached to
Annex A of this Agreement.
Assignment After Termination. Employee recognizes that ideas,
Inventions, Confidential Information, Copyright Works, Copyright
Registrations, Patent Applications or Patents relating to his or her
activities while working for the Company that are conceived or made by
Employee, alone or with others, within one (1) year after termination
of his or her employment may have been conceived in significant part
while Employee was employed by the Company. Accordingly, Employee
agrees that such ideas, Inventions, Confidential Information, Copyright
Works, Copyright Registrations, Patent Applications or Patents shall be
presumed to have been conceived and made during his or her employment
with the Company and are to be assigned to the Company pursuant to this
Agreement unless
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Employee can prove otherwise. This subsection shall continue in full
force and effect after termination of Employee's employment by the
Company and after the termination of this Agreement.
Prior Conceptions. Employee has set forth on Annex B attached
hereto what he or she represents and warrants to be a complete list of
all Inventions, if any, or Copyright Works, including a brief
description thereof (without revealing any confidential or proprietary
information of any other party) which Employee conceived, created,
developed or made, or participated in the conception, creation,
development or making of prior to his or her employment by the Company
and for which Employee claims full or partial ownership or other
interest, or which are in the physical possession of a former employer
and which in either case are therefore excluded from the scope of this
Agreement.
Conflicts of Interest. Employee agrees that for the duration
of this Agreement, he or she will not engage, either directly or
indirectly, in any activity which might adversely affect the Company or
any Affiliated Entity (a "Conflict of Interest"), including ownership
of a material interest in any supplier, contractor, distributor,
subcontractor, customer or other entity with which the Company does
business or accepting any payment, service, loan, gift, trip,
entertainment or other favor from a supplier, contractor, distributor,
subcontractor, customer or other entity with which the Company or any
Affiliated Entity does business and that Employee will promptly inform
an officer of the Company as to each offer received by Employee to
engage in any such activity. Employee further agrees to disclose to the
Company any other facts of which Employee becomes aware which might
involve or give rise to a Conflict of Interest or potential Conflict of
Interest. The Company agrees that Employee is otherwise free on his or
her own time and at his or her own expense to engage in other
activities that do not create an actual or potential Conflict of
Interest.
Confidential Information of Prior Companies. Employee will not disclose or use
during the period of his or her employment by the Company any proprietary or
confidential information or Copyright Works of a third party in fulfilling his
or her duties under this Agreement.
Right to Enter Agreement. Employee represents and warrants to the Company that
he or she has full power and authority to enter into this Agreement and that the
execution, delivery and performance of this Agreement will not breach or
constitute a default of any other agreement or contract to which he or she is a
party or by which he or she is bound.
Injunctive Relief. Employee acknowledges and agrees that any breach or violation
by Employee of this Agreement will result in immediate and irreparable injury
and harm to the Company and will cause damage to the Company in amounts
difficult to ascertain. Accordingly, in the event of a breach or threatened
breach by Employee of any of the provisions of this Agreement, Employee agrees
that the Company, in addition to and not in limitation of any other rights,
remedies or damages available to the Company at law or
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in equity, shall be entitled to a preliminary and permanent injunction in order
to prevent or restrain any such further breach by Employee or Employee's
partners, agents, representatives, servants, companies, employees and/or any and
all persons directly or indirectly acting for or with Employee. Employee
acknowledges and agrees that the remedies contained in this Paragraph 6 are
reasonably related to the injuries the Company may sustain as a result of
Employee's breach of his or her obligations under this Agreement, and are not a
penalty. It is further understood and agreed that no failure or delay by the
Company in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any right, power or
privilege hereunder.
Applicable Law. THIS AGREEMENT AND THE AGREEMENTS, INSTRUMENTS AND DOCUMENTS
CONTEMPLATED HEREBY WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF VIRGINIA (EXCLUSIVE OF CONFLICTS OF LAW PRINCIPLES) AND
WILL, TO THE MAXIMUM EXTENT PRACTICABLE, BE DEEMED TO CALL FOR PERFORMANCE IN
ALEXANDRIA, VIRGINIA. COURTS WITHIN THE STATE OF VIRGINIA WILL HAVE JURISDICTION
OVER ANY AND ALL DISPUTES BETWEEN THE PARTIES HERETO, WHETHER IN LAW OR EQUITY,
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE AGREEMENTS, INSTRUMENTS AND
DOCUMENTS CONTEMPLATED HEREBY. THE PARTIES CONSENT TO AND AGREE TO SUBMIT TO THE
JURISDICTION OF SUCH COURTS. VENUE IN ANY SUCH DISPUTE, WHETHER IN FEDERAL OR
STATE COURT, WILL BE LAID IN ALEXANDRIA, VIRGINIA. EACH OF THE PARTIES HEREBY
WAIVES, AND AGREES NOT TO ASSERT IN ANY SUCH DISPUTE, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY CLAIM THAT (i) SUCH PARTY IS NOT PERSONALLY
SUBJECT TO THE JURISDICTION OF SUCH COURTS, (ii) SUCH PARTY AND SUCH PARTY'S
PROPERTY IS IMMUNE FROM ANY LEGAL PROCESS ISSUED BY SUCH COURTS OR (iii) ANY
LITIGATION COMMENCED IN SUCH COURTS IS BROUGHT IN AN INCONVENIENT FORUM.
Notices. All notices, demands, requests or other communications that may be or
are required to be given, served or sent by either party to the other party
pursuant to this Agreement will be in writing and will be mailed by first-class,
registered or certified mail, return receipt requested, postage prepaid, or
transmitted by hand delivery, telegram or facsimile transmission addressed as
follows:
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(a) If to Company: Digital Commerce Corporation
000 Xxxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile Transmission No.: (000) 000-0000
Attn: Xxxx Xxxxxx, President
with a copy (which will
not constitute notice) to: Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
5400 Renaissance Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile Transmission No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxx, Xx., Esq.
(b) If to Employee: Xxxx Xxxxxx
00000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Facsimile Transmission No.:
with a copy (which will
not constitute notice) to:
-----------------------------------------
-----------------------------------------
-----------------------------------------
-----------------------------------------
Facsimile Transmission No.:
--------------
Attn:
------------------------------------
Either party may designate by written notice a new address to which any notice,
demand, request or communication may thereafter be given, served or sent. Each
notice, demand, request or communication that is mailed, delivered or
transmitted in the manner described above will be deemed sufficiently given,
served, sent and received for all purposes at such time as it is delivered to
the addressee with the return receipt, the delivery receipt, the affidavit of
messenger or (with respect to a facsimile transmission) the answer back being
deemed conclusive evidence of such delivery or at such time as delivery is
refused by the addressee upon presentation.
Gender. Words of any gender used in this Agreement will be held and construed to
include any other gender, and words in the singular number will be held to
include the plural, unless the context otherwise requires.
Entire Agreement. This Agreement represents the parties' entire agreement with
respect to the subject matter of this Agreement and supersedes and replaces any
prior agreement or understanding with respect to that subject matter. This
Agreement may not be amended or supplemented except pursuant to a written
instrument signed by the party against whom such amendment or supplement is to
be enforced.
Understanding of Agreement. Employee represents and warrants that he or she has
read and understands each and every provision of this Agreement, and Employee
understands that he or she is free to obtain advice from legal counsel of
choice, if necessary and
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desired, in order to interpret any and all provisions of this Agreement, and
that Employee has freely and voluntarily entered into this Agreement.
Counterparts. This Agreement may be executed in multiple counterparts, each of
which will be deemed to be an original and all of which will be deemed to be a
single agreement. This Agreement will be considered fully executed when all
parties have executed an identical counterpart, notwithstanding that all
signatures may not appear on the same counterpart.
Severability. If any of the provisions of this Agreement are determined to be
invalid or unenforceable, such invalidity or unenforceability will not
invalidate or render unenforceable the remainder of this Agreement, but rather
the entire Agreement will be construed as if not containing the particular
invalid or unenforceable provision or provisions, and the rights and obligations
of the parties will be construed and enforced accordingly. The parties
acknowledge that if any provision of this Agreement is determined to be invalid
or unenforceable, it is their desire and intention that such provision be
reformed and construed in such manner that it will, to the maximum extent
practicable, be deemed to be valid and enforceable.
Third Parties. Except as expressly set forth or referred to in this Agreement,
nothing in this Agreement is intended or will be construed to confer upon or
give to any party other than the parties to this Agreement and their successors
and permitted assigns, if any, any rights or remedies under or by reason of this
Agreement. Notwithstanding the immediately preceding sentence, Employee
acknowledges and agrees that his or her obligations under this Agreement are
intended to benefit each Affiliated Entity and may therefore be enforced by each
such Affiliated Entity.
Assignment. This Agreement and the rights and/or obligations of Employee under
this Agreement may not be assigned or delegated. The Company may assign or
delegate its rights and/or obligations hereunder to a subsidiary or affiliate of
Company or to a successor entity in the event of merger, consolidation or
transfer or sale of all or substantially all of the assets of the Company or of
the Company's business.
Waiver. No failure or delay in exercising any right hereunder will operate as a
waiver thereof, nor will any single or partial exercise thereof preclude any
other or further exercise or the exercise of any other right.
Headings. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
Survival. As noted herein, this Agreement shall survive the termination of
Employee's employment with the Company and shall continue to be of full force
and effect.
[BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement
effective as of the date first above written.
COMPANY:
DIGITAL COMMERCE CORPORATION
By:
-----------------------------------
Name:
----------------------------
Title:
---------------------------
EMPLOYEE:
--------------------------------------
Xxxx Xxxxxx
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ANNEX A
OTHER CONTRACTS
22
ANNEX B
PRIOR CONCEPTIONS
23
ANNEX F
NONCOMPETITION AGREEMENT
Employee's potential competition with Employer shall be governed by
that certain Employment Agreement between Employer and Employee dated as of
January 1, 1999.
