EXHIBIT 10.16
EXECUTION COPY
/ / Employee's Copy
/ / Company's Copy
LUMINANT WORLDWIDE CORPORATION
EMPLOYMENT AGREEMENT
To XXXXX XXXXXXXXX:
This Agreement establishes the terms of your employment with Luminant
Worldwide Corporation, a Delaware corporation (the "COMPANY"). The Company has
been formed as a parent company to acquire companies engaged in the business of
providing internet professional services and to make an initial public offering
("IPO") of the Company's common stock.
EMPLOYMENT AND DUTIES You and the Company agree to your employment as
Executive Vice President and Vice Chairman of the
Company on the terms contained herein. In such
position, you will report directly to the Company's
Chief Executive Officer (the "CEO"). You agree to
perform whatever duties the Board may assign you from
time to time, consistent with your position as
Executive Vice President and Vice Chairman. During
your employment, you agree to devote sufficient
business time, attention, and energies to performing
those duties (except as you and the CEO otherwise
agree from time to time). You agree to comply with
the noncompetition, secrecy, and other provisions of
Exhibit A to this Agreement.
TERM OF EMPLOYMENT Your employment under this Agreement begins as of
July 23, 1999 (the "EFFECTIVE DATE"). Unless sooner
terminated under this Agreement, your employment ends
at 6:00 p.m. Central Time on
(i) December 31, 1999 (or such earlier date
as of which the Company's Board of Directors
(the "BOARD") notifies you the Company is
abandoning its efforts for 1999 to complete
an IPO), if the Company has not completed
its IPO by that date, or
(ii) the third anniversary of the Effective
Date, if the Company has completed its IPO
on or before December 31, 1999.
The period running from the Effective Date to the
applicable date in the preceding sentence is the
"TERM."
Termination or expiration of this Agreement ends your
employment but does not end your obligation to comply
with Exhibit A or the Company's obligation, if any,
to make payments under the PAYMENTS ON TERMINATION
and SEVERANCE provisions as specified below.
COMPENSATION
SALARY The Company will pay you an annual salary (the
"SALARY") from the Effective Date to the date as of
which the IPO closes (the "IPO CLOSING DATE") at the
rate of not less than $20,000 per month in accordance
with its generally applicable payroll practices. Your
Salary will change prospectively to an annual rate of
$250,000 per year as of the IPO Closing Date. The
Board or its Compensation Committee will review your
Salary annually and consider you for increases.
CLOSING BONUS The Company will pay you a lump sum bonus equal to
$333 per day elapsed between February 15, 1999 and
the IPO Closing Date, payable within 15 days after
the IPO Closing Date.
PERFORMANCE BONUS The Board or its Compensation Committee will
establish annual bonus targets under which you will
be eligible for an annual bonus equal to up to 100%
of your Salary. The Company will use its best efforts
to establish bonus targets for the first year, in
good faith consultation with you, within 45 days
following the IPO Closing Date.
OPTIONS As of the date the Company's underwriters price the
IPO, the Company will grant options to you under the
Company's 1999 Equity Incentive Plan (the "EQUITY
PLAN"), exercisable at the IPO price, to acquire 1%
of the shares of common stock that will be
outstanding immediately after the IPO (including for
that purpose any shares subject to the underwriters'
overallotment but excluding any shares subject to
options, whether or not then exercisable). (As of the
Effective Date, the options are projected to cover
427,953 shares, but the Company will adjust that
number as necessary to satisfy the preceding
sentence.) The options will consist of incentive
stock options under Section 422 of the Internal
Revenue Code to the extent the tax laws permit and of
nonqualified stock options for the remainder. The
option agreement will provide that such options will
be fully exercisable when granted and will remain
exercisable for 10 years, irrespective of whether you
remain employed, or such shorter
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period at the end of which the Company terminates all
options under the Equity Plan's provisions. The
Company will permit cashless exercises of the
options, subject to any applicable lockups and
securities law restrictions. This provision will
survive any termination or expiration of this
Agreement.
The Company agrees to consider you for an additional
option on the same terms as those set forth in the
preceding paragraph and to be granted at the same
time. The Company will propose a number of shares for
such option within 30 days after the Effective Date.
The Company and you agree that you will have 10
business days to consider the number, at the end of
which you may tender your resignation (to be
effective no earlier than the earlier of October 15,
1999 or the IPO Closing Date) and receive severance
pay on the following schedule in lieu of all benefits
listed below under SEVERANCE and all other benefits
under the Agreement other than the options described
in the preceding paragraph: two months' payment of
$30,000 per month, two months' payment of $20,000 per
month, and two months' payment of $10,000 per month.
EMPLOYEE BENEFITS While the Company employs you under this Agreement,
the Company will provide you with the same benefits
as it makes generally available from time to time to
the Company's senior executive employees, as those
benefits are amended or terminated from time to time,
including participation in vacation policies (and
payment for accrued vacation) on a basis comparable
to that for senior management. Your participation in
the Company's benefit plans will be subject to the
terms of the applicable plan documents and the
Company's generally applied policies, and the Company
in its sole discretion may from time to time adopt,
modify, interpret, or discontinue such plans or
policies.
VACATION You will be entitled to four weeks' paid vacation
during each full year of your employment under this
Agreement. You must take such vacations at such times
as are consistent with the Company's reasonable
business needs.
COMPENSATION You will be eligible under a senior executive
REVIEW compensation program that will consider you for
annual increases in Salary.
PLACE OF EMPLOYMENT Your principal place of employment will be in Dallas,
Texas or in the surrounding counties or in New York
City, as the Company directs. You agree that you may
be required to travel from time to time for business
reasons.
EXPENSES The Company will reimburse you for reasonable and
necessary
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travel and other business-related expenses you incur
for the Company in performing your duties under this
Agreement (with the travel accommodations
substantially comparable to that of senior management
of the Company). You must itemize and substantiate
all requests for reimbursements. You must submit
requests for reimbursement in accordance with the
policies and practices of the Company. In addition,
the Company will reimburse you for all reasonable
attorneys' fees you have incurred in connection with
this Agreement, your options, and your employment by
the Company, to a maximum of $4,000.
MOVING EXPENSES The Company will reimburse you or pay up to $15,000
to move to Dallas, Texas and, if it later relocates
you to New York City, will reimburse you or pay up to
$15,000 for the move from Dallas to New York City.
LIMITS ON OTHER While the Company employs you, you agree that you
EMPLOYMENT will not, directly or indirectly, provide services to
any person or organization for which you receive
compensation or otherwise engage in activities if
providing such services or engaging in such
activities would conflict or interfere significantly
with your faithful performance of your duties as an
employee. (This prohibition excludes any work
performed at the Company's direction.) The Company
acknowledges that you serve as a director as of the
Effective Date for the companies listed on Schedule I
and agrees that such service (or comparable future
obligations you disclose in writing to the CEO) is
not, by itself, inconsistent with your obligations
under this Agreement, so long as you do not violate
the provisions of Exhibit A. In addition, you may
complete your existing consulting agreements listed
on Schedule II, consistent with the foregoing, as
long as you are finished by January 22, 2000. You may
manage your personal investments, as long as the
management does not conflict or interfere
significantly with your faithful performance of your
duties as an employee and is consistent with the
provisions of the NO CONFLICTS OF INTEREST Section
and the NO COMPETITION Section in Exhibit A. The
Company further agrees that you may continue writing
articles for XxxxxxXxxxx.xxx, as long as the articles
are consistent with your obligations under the
SECRECY provisions in Exhibit A.
You represent to the Company that you are not subject
to any agreement, commitment, or policy of any third
party that would prevent you from entering into or
performing your duties under this Agreement, and you
agree that you will not enter into any agreement or
commitment or agree to any policy that would prevent
or hinder your performance of duties and obligations
under
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this Agreement, including Exhibit A.
NO CONFLICTS OF INTEREST You confirm that you have fully disclosed to the
Company, to the best of your knowledge, all
circumstances under which you, your spouse, and other
persons who reside in your household have or may have
a conflict of interest with the Company. You further
agree to fully disclose to the Company any such
circumstances that might arise during your employment
upon your becoming aware of such circumstances. You
agree to fully comply with the Company's policy and
practices relating to conflicts of interest.
NO IMPROPER You will neither pay nor permit payment of any
PAYMENTS remuneration to or on behalf of any governmental
official other than payments required or permitted by
applicable law. You will comply fully with the
Foreign Corrupt Practices Act of 1977, as amended.
You will not, directly or indirectly,
make or permit any contribution, gift,
bribe, rebate, payoff, influence payment,
kickback, or other payment to any person or
entity, private or public, regardless of
what form, whether in money, property, or
services
to obtain favorable treatment
for business secured,
to pay for favorable treatment for
business secured,
to obtain special concessions or
for special concessions already
obtained, or
in violation of any legal
requirement, or
establish or maintain any fund or asset
related to the Company that is not recorded
in the Company's books and records, or
take any action that would violate (or would
be part of a series of actions that would
violate) any U.S. law relating to
international trade or commerce, including
those laws relating to trading with the
enemy, export control, and boycotts of
Israel or Israeli products (as is sought by
certain Arab countries).
TERMINATION Subject to the provisions of this section, you and
the Company agree that
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it may terminate your employment, or you may resign,
except that, if you voluntarily resign, you must
provide the Company with 30 days' prior written
notice (unless the Board has previously waived such
notice in writing or authorized a shorter notice
period).
FOR CAUSE The Company may terminate your employment for "CAUSE"
if you:
(i) commit a material breach of your
obligations or agreements under this
Agreement, including Exhibit A;
(ii) commit an act of gross negligence with
respect to the Company; or
(iii) are convicted of or plead guilty or no
contest to a felony (or to a felony charge
reduced to misdemeanor), other than
vehicular manslaughter, or, with respect to
your employment, to any misdemeanor (other
than a traffic violation) or, with respect
to your employment, commit either a material
dishonest act or common law fraud or
knowingly violate any federal or state
securities or tax laws.
Your termination for Cause will be effective
immediately upon the Company's mailing or written
transmission of notice of such termination. Before
terminating your employment for Cause under clauses
(i) and (ii) above, the Company will specify in
writing to you the nature of the act, omission,
refusal, or failure that it deems to constitute Cause
and, unless the situation is not reasonably
correctable, give you 30 days after you receive such
notice to correct the situation (and thus avoid
termination for Cause), unless the Company agrees to
extend the time for correction.
WITHOUT CAUSE Subject to the provisions below under PAYMENTS ON
TERMINATION and SEVERANCE, the Company may terminate
your employment under this Agreement before the end
of the Term without CAUSE. The Company agrees not to
terminate your employment without CAUSE during the
first six months after the Effective Date.
DISABILITY If you become "DISABLED" (as defined below), the
Company may terminate your employment. You are
"disabled" if you are unable, despite whatever
reasonable accommodations the law requires, to render
services
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to the Company for more than 90 consecutive days
because of physical or mental disability, incapacity,
or illness. You are also disabled if you are found to
be disabled within the meaning of the Company's
long-term disability insurance coverage as then in
effect (or would be so found if you applied for the
coverage).
GOOD REASON You may resign for Good Reason with 30 days' advance
written notice. "GOOD REASON" for this purposes
means, without your consent, (i) the Company
materially breaches this Agreement or (ii) the
Company relocates your primary office outside Dallas,
Texas and the surrounding counties or, if you
relocate from Dallas to New York City, from New York
City.
You must give notice to the Company of your intention
to resign for Good Reason within 30 days after the
occurrence of the event that you assert entitles you
to resign for Good Reason. In that notice, you must
state the condition that you consider provides you
with Good Reason and, if such reason relates to
clause (i) above, must give the Company an
opportunity to cure the condition within 30 days
after your notice (with the 30 day period shortened
to 10 days if the failure relates to a nonpayment of
Salary and such nonpayment is not cured within 5 days
after you provide written notice of such nonpayment
to the Company). Before or during the 30 (or 10) day
period, either party may request mediation under
Exhibit B to resolve any such disputes, and, if so
requested, the parties agree to cooperate to arrange
a prompt mediation during no more than a 30 day
period. If the Company fails to cure the condition,
your resignation will be effective on the 30th day
after your notice (unless the Board has previously
waived such notice period in writing or agreed to a
shorter notice period or unless mediation is
proceeding in good faith, in which case such
resignation will become effective 15 days after the
end of such mediation, if not previously cured). The
Company agrees that your effective date of
resignation will be the end of the 10 day cure period
for failure to pay Salary.
You will not be treated as resigning for GOOD REASON
if the Company already had given notice of
termination for CAUSE as of the date of your notice
of resignation.
DEATH If you die during the Term, the Term will end as of
the date of your death.
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PAYMENTS ON If you resign or the Company terminates your
TERMINATION employment with or without CAUSE or because of
disability or death or because the Company does not
complete its IPO, the Company will pay you any unpaid
portion of your Salary pro-rated through the date of
actual termination (and any annual bonuses already
determined by such date but not yet paid, unless your
employment is terminated with CAUSE or because the
IPO has been canceled), reimburse any substantiated
but unreimbursed business expenses, pay any accrued
and unused vacation time (to the extent consistent
with the Company's policies), and provide such other
benefits as applicable laws or the terms of the
benefits require. Except to the extent the law
requires otherwise or as provided in the SEVERANCE
paragraph or your option agreements, neither you nor
your beneficiary or estate will have any rights or
claims under this Agreement or otherwise to receive
severance or any other compensation, or to
participate in any other plan, arrangement, or
benefit, after such termination or resignation. If
your employment is terminated because the Company
does not complete its IPO in 1999, you acknowledge
that you have no rights to the SEVERANCE set forth
below.
SEVERANCE In addition to the foregoing payments, if (i) you
resign for GOOD REASON and the Company completes or
has completed its IPO on or before December 31, 1999
or (ii) after the completion of the IPO but before
the end of the Term, you resign for GOOD REASON or
the Company terminates your employment without CAUSE,
the Company will
pay you severance equal to your Salary, as
then in effect, for 18 months on the same
schedule as though you had remained employed
during such period, even though you are no
longer employed;
pay the after-tax premium cost for you to
receive any group health coverage the
Company must offer you under Section 4980B
of the Internal Revenue Code of 1986 ("COBRA
COVERAGE") for the period of such coverage
(unless the coverage is then provided under
a self-insured plan); and
pay you, at the time the Company would
otherwise pay your annual bonus, your pro
rata
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share of the bonus for the year of your
termination, where the pro rata factor is
based on days elapsed in your year of
termination till date of termination over
365, less any portion of the bonus for the
year of your termination already paid.
You are not required to mitigate amounts
payable under the SEVERANCE paragraph by
seeking other employment or otherwise, nor
must you return to the Company amounts
earned under subsequent employment.
EXPIRATION Expiration of this Agreement, whether because of
notice of non- renewal or otherwise, does not
constitute termination without CAUSE nor provide you
with GOOD REASON and does not entitle you to
SEVERANCE, unless the Company's general severance
practices entitle you to severance in that situation.
If you remain employed through the end of the Term
and your employment then ends as a result of
expiration of the Agreement (other than because the
IPO is canceled), the Company will pay you severance
equal to your Salary, as then in effect, for nine
months on the same schedule as though you had
remained employed during such period, even though you
are no longer employed, which payments you agree
compensate you for the restrictions under Exhibit A
upon contract expiration.
ASSIGNMENT The Company may assign or otherwise transfer this
Agreement and any and all of its rights, duties,
obligations, or interests under it to
any of the affiliates or subsidiaries of the
Company or
to any business entity that at any time by
merger, consolidation, or otherwise acquires
all or substantially all of the Company's
stock or assets or to which the Company
transfers all or substantially all of its
assets.
Under the preceding sentence, the Company
agrees not to assign or transfer this
Agreement to a subsidiary, affiliate, or
asset purchaser without your consent, but
may assign or transfer the Agreement without
your consent to a stock purchaser or merger
survivor. Upon such assignment or
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transfer, any such business entity will be
deemed to be substituted for the Company for
all purposes (except that the Company will
remain secondarily liable if it transfers
this Agreement to a subsidiary). You agree
that any such permitted assignment or
transfer does not entitle you to Severance.
This Agreement binds and benefits the
Company, its successors or assigns, and your
heirs and the personal representatives of
your estate. Without the Board's or the
CEO's prior written consent, you may not
assign or delegate this Agreement or any or
all rights, duties, obligations, or
interests under it.
SEVERABILITY If the final determination of an arbitrator or a
court of competent jurisdiction declares, after the
expiration of the time within which judicial review
(if permitted) of such determination may be
perfected, that any term or provision of this
Agreement, including any provision of Exhibit A, is
invalid or unenforceable, the remaining terms and
provisions will be unimpaired, and the invalid or
unenforceable term or provision will be deemed
replaced by a term or provision that is valid and
enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or
provision.
AMENDMENT; WAIVER Neither you nor the Company may modify, amend, or
waive the terms of this Agreement other than by a
written instrument signed by you and an executive
officer of the Company duly authorized by the Board.
Either party's waiver of the other party's compliance
with any provision of this Agreement is not a waiver
of any other provision of this Agreement or of any
subsequent breach by such party of a provision of
this Agreement.
WITHHOLDING The Company will reduce its compensatory payments to
you for withholding and FICA taxes and any other
withholdings and contributions required by law.
THIRD PARTY BENEFICIARY You understand and agree that, until the IPO is
completed, Commonwealth Principals II LLC is a third
party beneficiary of this Agreement, which means that
Commonwealth may enforce this Agreement even though
not a party to it.
GOVERNING LAW The laws of the State of Texas (other than its
conflict of laws provisions) govern this Agreement.
NOTICES Notices must be given in writing by personal
delivery, by certified mail, return receipt
requested, by telecopy, or by overnight delivery. You
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should send or deliver your notices to the Company's
corporate headquarters. The Company will send or
deliver any notice given to you at your address as
reflected on the Company's personnel records. You and
the Company may change the address for notice by like
notice to the others. You and the Company agree that
notice is received on the date it is personally
delivered, the date it is received by certified mail,
the date of guaranteed delivery by the overnight
service, or the date the fax machine confirms
effective transmission.
SUPERSEDING EFFECT This Agreement supersedes any prior oral or written
employment, severance, option, or fringe benefit
agreements between you and the Company, other than
with respect to your eligibility for generally
applicable employee benefit plans. This Agreement
supersedes all prior or contemporaneous negotiations,
commitments, agreements, and writings with respect to
the subject matter of this Agreement specifically
including your letter agreement with the Company
dated as of February 15, 1999. All such other
negotiations, commitments, agreements, and writings
will have no further force or effect; and the parties
to any such other negotiation, commitment, agreement,
or writing will have no further rights or obligations
thereunder.
If you accept the terms of this Agreement, please sign in the space indicated
below. We encourage you to consult with any advisers you choose.
LUMINANT WORLDWIDE CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxxx
-------------------------------
Xxxxxxxxx X. Xxxxxx
Chief Executive Officer
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I accept and agree to the terms of employment set
forth in this Agreement:
/s/ Xxxxx Xxxxxxxxx
---------------------------
Xxxxx Xxxxxxxxx
Dated: July 23, 1999
---------------------
EXHIBIT A
NO COMPETITION You agree to the provisions of this Exhibit A in
consideration of (i) your employment by the Company
and salary and benefits under this Agreement and the
training you will receive in connection with such
employment and (ii) your participation in the
Company's public offering, and you agree that Exhibit
A should be considered ancillary to the agreements by
which the Company will make its IPO. While the
Company (or its successor or transferee) employs you
and to the end of the Restricted Period (as defined
below), you agree as follows:
You will not, directly or indirectly, be
employed by, lend money to, or engage in any
Competing Business within the Market Area
(each as defined below). That prohibition
includes, but is not limited to, acting,
either singly or jointly or as agent for, or
as an employee of or consultant to, any one
or more persons, firms, entities, or
corporations directly or indirectly (as a
director, independent contractor,
representative, consultant, member, or
otherwise) that constitutes such a Competing
Business. You also will not invest or hold
equity or options in any Competing Business,
provided that you may own up to 3% of the
outstanding capital stock of any corporation
that is actively publicly traded without
violating this NO COMPETITION covenant, so
long as you have no involvement beyond
passive investing in such business and you
comply with the second sentence of this
paragraph.
Notwithstanding other provisions of Exhibit A, during
the Restricted Period, you may directly provide
consulting services for clients other than those any
one or more
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members of the Company Group billed at least $25,000
in the 12 months preceding your employment
termination ("SIGNIFICANT COMPANY CLIENTS") (or, for
consulting assignments while employed, within the 12
months preceding the date as of which you would begin
the assignment), but this exception does not permit
you to be an employee or board member of a Competing
Business. Within 30 days after your employment ends,
the Company will provide you with a list of the
Significant Company Clients (which list you will
treat as Confidential Information under the SECRECY
provisions). You agree that you are on notice as to
all Significant Company Clients during the term of
your employment and that, after your employment ends,
you agree to treat as a Significant Company Client
during the Restricted Period any client of the
Company Group that you are aware should have been on
the list provided to you.
If, during the Restricted Period, you are offered and
want to accept employment with a Competing Business,
you will inform the CEO in writing of the identity of
the business, your proposed duties with that
business, and the proposed starting date of that
employment. You will also inform that business of the
terms of this Exhibit A. The Company will analyze the
proposed employment and respond within three business
days as to whether it will release you from the NO
COMPETITION restrictions with respect to that
employment.
You acknowledge that, during the portion of the
Restricted Period that follows your employment, if
any, you may engage in any business activity or
gainful employment of any type and in any place
except as described above. You acknowledge that you
will be reasonably able to earn a livelihood without
violating the terms of this Agreement.
You understand and agree that the rights and
obligations set forth in this NO COMPETITION Section
will continue and will survive through the Restricted
Period.
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DEFINITIONS
COMPETING COMPETING BUSINESS means (i) Scient, Viant, US Web /
BUSINESS CKS, Proxicom, Razorfish, Modem Media.Xxxxx Xxxxx,
iXL Enterprises, XXXXXX.XXX, AppNet, Organic Online,
US Interactive, AnswerThink Consulting Group, THINK
New Ideas, Inc., Sapient, (ii) any entity that is a
successor to one of the listed entities, and (iii)
three additional comparable companies for each year
of your employment (beginning as of each anniversary
of the Effective Date), up to a cumulative total of
nine additional companies, which additional companies
the Company will list on a schedule it will provide
you within 30 days after your termination of
employment. (In other words, you agree that the
Company may list three additional comparable
companies times the number of anniversaries of the
Effective Date that have occurred before expiration
of this Agreement or termination of your employment,
to a maximum of nine additional companies.)
MARKET AREA The Market Area consists of the United States
and Canada. You agree that the Company provides
services both at its facilities and at the locations
of its customers or clients and that, by the nature
of its business, it operates globally.
RESTRICTED For purposes of this Agreement, the RESTRICTED PERIOD
PERIOD ends at the earliest of (i) nine months after the
date your employment with the Company Group ends for
any reason (where "COMPANY GROUP" means the Company
and its successors, assigns, subsidiaries, and
predecessors of subsidiaries), (ii) the Company's
failure for any reason to complete its IPO by
December 31, 1999, and (iii) the date of your
termination for Disability.
NO INTERFERENCE; During the Restricted Period you agree that you will
NO SOLICITATION not, directly or indirectly, whether for yourself or
for any other individual or entity (other than the
Company or its affiliates or subsidiaries),
intentionally
solicit any person or entity who is, or was,
within the 24 months preceding your date of
termination or resignation, a customer,
prospect (with respect to which any member
of the Company Group has incurred
substantial costs or with which you have
been involved), or client of the Company
Group within the Market Area, with the 24
month period reduced to 12 months for
prospects with which you have
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not been involved, provided that, after your
employment ends, the foregoing applies only
to Significant Company Clients;
hire away or endeavor to entice away from
the Company Group any employee or any other
person or entity whom the Company Group
engages to perform services or supply
products and including, but not limited to,
any independent contractors, consultants,
engineers, or sales representatives or any
contractor, subcontractor, supplier, or
vendor; or
hire any person whom the Company Group
employs or employed within the prior 12
months, unless the Company terminated the
employee.
SECRECY
PRESERVING Your employment with the Company under and, if
COMPANY applicable, before this Agreement (with a predecessor
CONFIDENCES to a member of the Company Group), has given and will
give you access to Confidential Information (as
defined below). You acknowledge and agree that using,
disclosing, or publishing any Confidential
Information in an unauthorized or improper manner
could cause the Company or Company Group to incur
substantial loss and damages that could not be
readily calculated and for which no remedy at law
would be adequate. Accordingly, you agree with the
Company that you will not at any time, except in
performing your employment duties to the Company or
the Company Group under this Agreement (or with the
Board's or the CEO's prior written consent), directly
or indirectly, use, disclose, or publish, or permit
others not so authorized to use, disclose, or publish
any Confidential Information that you may learn or
become aware of, or may have learned or become aware
of, because of your prior or continuing employment,
ownership, or association with the Company or the
Company Group or any of their predecessors, or use
any such information in a manner detrimental to the
interests of the Company or the Company Group.
PRESERVING You agree not to use in working for the Company Group
OTHERS' and not to disclose to the Company Group any trade
CONFIDENCES secrets or other information you do not have the
right to use or disclose and that the Company Group
is not free to use without liability of any kind. You
agree to promptly inform the Company in writing of
any patents,
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copyrights, trademarks, or other proprietary rights
known to you that the Company or the Company Group
might violate because of information you provide.
CONFIDENTIAL "CONFIDENTIAL INFORMATION" includes, without
INFORMATION limitation, information that the Company or the
Company Group has not previously disclosed to the
public or to the trade with respect to the Company's
or the Company Group's present or future business,
including its operations, services, products,
research, inventions, discoveries, drawings, designs,
plans, processes, models, technical information,
facilities, methods, trade secrets, copyrights,
software, source code, systems, patents, procedures,
manuals, specifications, any other intellectual
property, confidential reports, price lists, pricing
formulas, customer lists, financial information
(including the revenues, costs, or profits associated
with any of the Company's or the Company Group's
products or services), business plans, lease
structure, projections, prospects, opportunities or
strategies, acquisitions or mergers, advertising or
promotions, personnel matters, legal matters, any
other confidential and proprietary information, and
any other information not generally known outside the
Company or the Company Group that may be of value to
the Company or the Company Group "CONFIDENTIAL
INFORMATION" also includes confidential and
proprietary information and trade secrets that third
parties entrust to the Company or the Company Group
in confidence.
"CONFIDENTIAL INFORMATION" excludes any such
information
already properly in the public domain,
that has already entered the public domain
through no direct or indirect fault, action,
or omission of yours,
that a third party independently develops
without breach of this SECRECY provision and
releases to the public domain,
that the Company or other member of the
Company Group approves in writing for you to
disclose or use, or
that you must disclose under an order of a
court of law or arbitrator, governmental
demand, or other operation of law, provided
that you immediately notify the Company of
any demand for such disclosure and allow the
Company to contest such disclosure.
Employment Agreement with Xxxxx Xxxxxxxxx Page 16 of 23
You understand and agree that the rights and
obligations set forth in this SECRECY
Section will continue indefinitely and will
survive termination of this Agreement and
your employment with the Company or the
Company Group.
EXCLUSIVE PROPERTY You confirm that all Confidential Information is and
must remain the exclusive property of the Company or
the relevant member of the Company Group. Any office
equipment (including computers) you receive from the
Company Group in the course of your employment and
all business records, business papers, and business
documents you keep or make, whether on digital media
or otherwise, in the course of your employment by the
Company relating to the Company or any member of the
Company Group must be and remain the property of the
Company or the relevant member of the Company Group.
Upon the termination of this Agreement with the
Company or upon the Company's request at any time,
you must promptly deliver to the Company or to the
relevant member of the Company Group any such office
equipment (including computers) and any Confidential
Information or other materials (written or otherwise)
not available to the public or made available to the
public in a manner you know or reasonably should
recognize the Company did not authorize, and any
copies, excerpts, summaries, compilations, records,
or documents you made or that came into your
possession during your employment. You agree that
you will not, without the Company's consent, retain
copies, excerpts, summaries, or compilations of the
foregoing information and materials. You understand
and agree that the rights and obligations set forth
in this EXCLUSIVE PROPERTY Section will continue
indefinitely and will survive termination of this
Agreement and your employment with the Company Group.
COPYRIGHTS, You agree that all records, in whatever media
DISCOVERIES, (including written works), documents, papers,
INVENTIONS, AND notebooks, drawings, designs, technical information,
PATENTS source code, object code, processes, methods or other
copyrightable or otherwise protected works you
conceive, create, make, invent, or discover for the
Company or the Company Group in the course of your
employment (whether or not during usual working
hours), whether conceived, created, discovered, made,
or invented individually or jointly with others, will
be and remain the absolute property of the Company
(or another appropriate member of the Company Group,
as specified by the Company), as will all the
worldwide patent, copyright, trade secret, or other
intellectual property rights in all such works. (All
Employment Agreement with Xxxxx Xxxxxxxxx Page 17 of 23
references in this section to the Company include the
members of the Company Group, unless the Company
determines otherwise.) You irrevocably and
unconditionally waive all rights, wherever in the
world enforceable, that vest in you (whether before,
on, or after the date of this Agreement) in
connection with your authorship of any such
copyrightable works in the course of your employment
with the Company Group or any predecessor. Without
limitation, you waive the right to be identified as
the author of any such works and the right not to
have any such works subjected to derogatory
treatment. YOU RECOGNIZE ANY SUCH WORKS ARE "WORKS
FOR HIRE" OF WHICH THE COMPANY IS THE AUTHOR.
You will promptly disclose, grant, and assign
ownership to the Company for its sole use and benefit
any and all ideas, processes, inventions,
discoveries, improvements, technical information, and
copyrightable works (whether patentable or not) that
you develop, acquire, conceive or reduce to practice
in the course of your employment (whether or not
during usual working hours) for the Company or the
Company Group. You will promptly disclose and hereby
grant and assign ownership to the Company of all
patent applications, letters patent, utility and
design patents, copyrights, and reissues thereof or
any foreign equivalents thereof, that may at any time
be filed or granted for or upon any such invention,
improvement, or information. In connection therewith:
You will, without charge but at the
Company's expense, promptly execute and
deliver such applications, assignments,
descriptions, and other instruments as the
Company may consider reasonably necessary or
proper to vest title to any such inventions,
discoveries, improvements, technical
information, patent applications, patents,
copyrightable works, or reissues thereof in
the Company and to enable it to obtain and
maintain the entire worldwide right and
title thereto; and
You will provide to the Company at its
expense all such assistance as the Company
may reasonably require in the prosecution of
applications for such patents, copyrights,
or reissues thereof, in the prosecution or
defense of interferences that may be
declared involving any such applications,
patents, or copyrights and in any litigation
in which the Company
Employment Agreement with Xxxxx Xxxxxxxxx Page 18 of 23
may be involved relating to any such
patents, inventions, discoveries,
improvements, technical information, or
copyrightable works or reissues thereof. The
Company will reimburse you for reasonable
out-of-pocket expenses you incur and pay you
reasonable compensation for your time if the
Company Group no longer employs you.
You and the Company agree that Exhibit C lists and
briefly describes works, inventions, discoveries,
proprietary information, and copyrighted or
copyrightable works (including contemplated works)
that the Company will not contest are owned (or will
be owned) by you or any entity to which you have
assigned them, so long as they are not created for
the Company or the Company Group in the course of
your employment for the Company or the Company Group.
Except as set forth in the next paragraph, you agree
that you have no ownership interest in any other such
works or related patents or copyrights that you
create in the course of your employment for the
Company or the Company Group.
To the extent, if any, that you own rights to works,
inventions, discoveries, proprietary information, and
copyrighted or copyrightable works, or other forms of
intellectual property that are incorporated in the
work product you create for the Company Group
(creating "DERIVATIVE PRODUCTS"), you agree that the
Company will have an unrestricted, non-exclusive,
royalty-free, perpetual, transferable license to
make, use, sell, offer for sale, and sublicense such
Derivative Products, and you hereby grant such
license to the Company (and the Company Group).
This COPYRIGHTS, DISCOVERIES, INVENTIONS AND PATENTS
section does not apply to an invention or discovery
for which no equipment, supplies, facility or trade
secret information of the Company Group (including
its predecessors) was used and that was developed
entirely on your own time and not in course of your
employment.
MAXIMUM LIMITS If any of the provisions of Exhibit A are ever deemed
to exceed the time, geographic area, or activity
limitations the law permits, you and the Company
agree to reduce the limitations to the maximum
permissible limitation, and you and the Company
authorize a court or
Employment Agreement with Xxxxx Xxxxxxxxx Page 19 of 23
arbitrator having jurisdiction to reform the
provisions to the maximum time, geographic area, and
activity limitations the law permits; PROVIDED,
HOWEVER, that such reductions apply only with respect
to the operation of such provision in the particular
jurisdiction with respect to which such adjudication
is made.
INJUNCTIVE RELIEF Without limiting the remedies available to the
Company, you acknowledge
that a breach of any of the covenants in
this Exhibit A may result in material
irreparable injury to the Company and
Company Group for which there is no adequate
remedy at law, and
that it will not be possible to measure
damages for such injuries precisely.
You agree that, if there is a breach or threatened
breach, the Company or any member of the Company
Group may be entitled to seek a temporary restraining
order and/or a preliminary or permanent injunction
restraining you from engaging in activities
prohibited by any provisions of this Exhibit A or
such other relief as may be required to specifically
enforce any of the covenants in this Exhibit A. The
Company or any member of the Company Group will, in
addition to the remedies provided in this Agreement,
be entitled to avail itself of all such other
remedies as may now or hereafter exist at law or in
equity for compensation and for the specific
enforcement of the covenants contained in this
Agreement. Resort to any remedy provided for in this
Section or provided for by law will not prevent the
concurrent or subsequent employment of any other
appropriate remedy or remedies, or preclude the
Company's or the Company Group's recovery of monetary
damages and compensation. You also agree that the
Restricted Period or such longer period during which
the covenants hereunder by their terms survive will
extend for any and all periods for which a court with
personal jurisdiction over you finds that you
violated the covenants contained in this Exhibit A.
Employment Agreement with Xxxxx Xxxxxxxxx Page 20 of 23
EXHIBIT B
DISPUTE RESOLUTION
MEDIATION If either party has a dispute or claim relating to
this Agreement or their relationship and except as
set forth in ALTERNATIVES, the parties must first
seek to mediate the same before an impartial mediator
the parties mutually designate, and the parties must
equally share the expenses of such proceeding (other
than their respective attorneys' fees). Subject to
the mediator's schedule, the mediation must occur
within 30 days of either party's written demand.
However, in an appropriate circumstance, a party may
seek emergency equitable relief from a court of
competent jurisdiction notwithstanding this
obligation to mediate.
ALTERNATIVES This DISPUTE RESOLUTION provision does not preclude a
party from seeking equitable relief from a court (i)
to prevent imminent or irreparable injury or (ii)
pending mediation, to preserve the last peaceable
status quo, nor does it preclude the parties from
agreeing to a less expensive and faster means of
dispute resolution. It does not prevent the Company
from immediately seeking in court an injunction or
other remedy with respect to Exhibit A.
Employment Agreement with Xxxxx Xxxxxxxxx Page 21 of 23
EXHIBIT C
INTELLECTUAL PROPERTY CARVEOUTS
Intellectual property, copyrighted and copyrightable material, inventions and
discoveries, works and proprietary information and techniques related to the
newspaper, magazine, book publishing, radio broadcasting, recorded music,
television broadcast and production, film, cable television, satellite,
broadband, internet, and electronic media and distribution industries, as well
as computer and telecommunication industries on a variety of topics, including
content creation, advertising, electronic commerce, production, packaging,
distribution, marketing, databases, and other aspects or forms of commercial
exploitation of these and other industries. In addition, numerous financial and
joint venture structuring methodologies, and works in progress related to
articles or books on these and related topics.
Employment Agreement with Xxxxx Xxxxxxxxx Page 22 of 23
