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Exhibit 10.26
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("this Agreement") is made and effective this
7th day of April, 1997, by and between XXXXXX TECHNOLOGIES, INC., a Florida
corporation located at 000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, 00000
("Company"), and Xxxxx Xxxxxxxxx residing at 000 X X. 0xx Xxxxxx, Xxxx Xxxxx, XX
("Employee").
WITNESSETH:
WHEREAS, Company believes it is in Company's best interest to employ
Employee, and Employee desires to be employed by Company; and
WHEREAS, Company and Employee desire to set forth the terms and conditions
on which Employee shall be employed by and provide his services to Company;
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto, intending to be legally bound, do hereby agree
as follows:
1. EMPLOYMENT. Company hereby employs Employee in its business as a Vice
President of Development, and Employee hereby accepts such employment, all upon
the terms and conditions hereinafter set forth.
2. TERM. Unless sooner terminated pursuant to the provisions of this
Agreement, the term of employment under this Agreement shall be for as long as
Employee remains employed hereunder, with Employee acknowledging that he is an
at will employee ("Employment Period").
3. SALARY AND BASE COMPENSATION. Employee shall be entitled to receive
salary during the Employment Period at the rate of Eighty Five Thousand and
100/00 Dollars ($85,000.00) per annum, as such may be increased pursuant to
Section 9 hereof (the "Base Salary"). In addition to the Base Salary paid to
Employee during the Employment Period, Employee shall be entitled to receive the
Benefits, Bonus Compensation, and Stock Option (as those terms are hereinafter
defined) during the Employment Period. The Base Salary shall be payable biweekly
in accordance with the current normal payroll policies of Company, which
policies may be changed by Company from time to time in its sole discretion, and
shall be subject to all appropriate withholding taxes.
4. BUSINESS EXPENSES AND REIMBURSEMENTS. Employee shall be entitled to
reimbursement by the Company for ordinary and necessary business expenses
incurred by
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Employee in the performance of his duties for the Company, which types of
expenditures shall be determined and approved by the Company, and further
provided that:
(a) Each such expenditure is of a nature qualifying it as a proper
deduction on the Federal and State income tax returns of Company as a business
expense and not as deductible compensation to Employee, and
(b) Employee furnishes Company with adequate records and other documentary
evidence required by federal and State statutes and regulations for the
substantiation of such expenditures as deductible business expenses of Company
and not as deductible compensation to Employee, as well as any other
documentation reasonably requested by Company.
(c) Employee agrees that, if at any time, any payment made to Employee by
Company, whether for salary or as a business expense reimbursement, shall be
disallowed in whole or in part as a deductible expense by the appropriate taxing
authorities, Employee shall reimburse Company to the full extent of such
disallowance.
5. BENEFITS.
(a) Employee agrees that the Base Salary, the Bonus Compensation, the Stock
Option, and the Benefits provided in accordance with this Agreement, are the
sole and exclusive compensation of Employee for his duties hereunder.
(b) Continuing throughout the Employment Period:
(i) Employee shall receive all of the employee benefits including,
without limitation, pension, disability, profit sharing and retirement
benefits, provided at any time by Company to any of its employees in the sole
and absolute discretion of the Board of Directors of the Company (the "Board");
(ii) The Company shall provide health insurance providing hospital,
medical and dental coverage pursuant to Company plans in effect from time to
time for Employee and each of Employee's dependents at similar expense to
Employee or such dependents as charged to other employees of the Company.
6. VACATION. Employee shall be entitled to vacation in accordance with the
vacation policy of the Company in effect from time to time.
7. PROFITS BONUS.
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(a) Employee shall be entitled to receive within 15 days of the end of
each full calendar quarter during the Employment Period, a bonus based upon
Employees performance of stated objectives as described in Exhibit A (the
"Bonus Compensation").
(b) Notwithstanding anything to the contrary in this Agreement, the
Bonus Compensation shall be payable only provided Employee is in the employ of
Company on the last day of the respective quarter for which such Profits Bonus
is being calculated and further payable in accordance with and subject to the
normal payroll policies of Company with respect to similar forms of
compensation, including without limitation, being subject to all appropriate
withholding taxes.
8. STOCK OPTION. In addition to Employee's Base Salary, Benefits and Bonus
Compensation, Employee shall be entitled to participate in the Company's Stock
Option Program for Employees. The exercise price for such stock shall be
estimated fair market value of such stock as determined by Company's internal
accounting department and shall be final and binding.
9. COMPENSATION REVIEW. The President or his designee shall from time to
time, no less frequently than annually, review Employee's compensation and may
(in his sole discretion) increase~ but not decrease, the compensation provided
for in Section 3 hereof. Any such increase in compensation shall be valid only
if in writing, executed by the President or his designee, and such writing shall
constitute an amendment solely to the payments to be made to Employee under this
Agreement, without waiver or modification of any other provision hereof.
10. INVENTION ASSIGNMENT AND CONFIDENTIALITY AGREEMENT. Against the
execution and delivery of this Agreement, Employee shall enter into an agreement
in the form of Exhibit "C" hereto (the "Invention Assignment and
Confidentiality Agreement").
11. NON-COMPETITION AGREEMENT. Against the execution and delivery of this
Agreement, Employee shall enter into a non-competition and non-solicitation
agreement (ut the form of Exhibit "D" hereto) (the "Non-Competition Agreement")
which also, notwithstanding the at will nature of the employment, provides for a
severance benefit under certain circumstances.
12. NO OTHER COMPENSATION OR BENEFITS. Employee agrees that the
compensation set forth in this Agreement is the sole and exclusive compensation
of Employee for his duties hereunder, and that he shall have no rights to
receive any other compensation or benefits of any nature.
13. DUTIES. During the Employment Period:
(a) Employee shall furnish all maimer of services in connection with
his position as Vice President of Development or as otherwise designated by the
President including, without limitation, primary responsibility for such duties
as shall be deemed by the President appropriate
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to carry out the policies and programs of the Board and as from time to time may
be delegated or assigned to him by the Board;
(b) Employee shall report directly to the President (or someone
appointed by the President) in the performance of all his duties herein.
(c) Employee shall comply with all Company policies for the employees
as such policies may exist from time to time.
(d) Employee shall devote his entire time, energy and skill to the
service of Company and the promotion of Company's interests, and shall use his
best efforts in the performance of his services hereunder. The parties agree
that Employee may not, during the Employment Period, be engaged in any other
business activity whether or not such activity is pursued for gain, profit, or
other pecuniary advantage including, without limitation, management or
management consulting activities; provided, however, Employee may invest his
personal assets in businesses where the form or maimer of such investment will
not require services on the part of Employee conflicting with the duties of
Employee under this Agreement and in which his participation is solely that of a
passive investor. Employee agrees to abide by all rules and regulations
established from time to time by the President and/or the Board; and all
commissions, fees or other income earned and received by Employee, if any, in
furtherance of the business of Company, or its affiliates or from any other
business or financial opportunity or endeavor in which Employee is an active
participant and not a passive investor, shall be accepted by Employee for the
account of Company, and shall be remitted to Company within three (3) days of
Employee's receipt thereof
14. AUTHORITY TO CONTRACT. Employee shall have no authority to enter into
any contracts binding upon Employer, or to create any obligations on the part of
Employer, unless specifically authorized in writing by the President or the
Board,
15. TERMINATION. The Employer may, in its sole discretion, terminate this
Agreement for any reason, subject to the severance obligation outlined in the
Non-Competition Agreement. In the event of termination of employment by either
party, subject to compliance with the Non-Competition Agreement, Employee shall
be entitled to distributions pursuant to the severance provisions more fully set
forth in the Non-Competition Agreement and to all Base Salary and fully accrued
Bonus Compensation for completed quarters.
16. SURRENDER OF RECORDS. Upon the termination of the Employee's employment
hereunder, for any reason whatsoever, and in addition to such other actions as
may be reasonably required by Employer, the Employee agrees to surrender to the
Employer, in good condition, any record or records kept by him containing the
names, addresses, and other information with regard to customers or potential
customers of the Employer which have been served by the Employee.
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17. ENTIRE AGREEMENT. This Agreement represents the entire understanding
and agreement between the parties with respect to the subject matter hereof, and
supersedes all other negotiations, understandings and representations (if any)
made by and between such parties.
18. AMENDMENTS. The provisions of this Agreement may not be amended,
supplemented, waived or changed orally, but only by a writing signed by the
party as to whom enforcement of any such amendment, supplement, waiver or
modification is sought and making specific reference this Agreement.
19. ASSIGNMENTS. Employee shall not assign his rights and/or obligations
hereunder.
20. BINDING EFFECT. All of the terms and provisions of this Agreement,
whether so expressed or not, shall be binding upon, inure to the benefit of, and
be enforceable by the parties and their respective administrators, executors,
legal representatives, heirs, successors and permitted assigns.
21. SEVERABILITY. If any part of this Agreement or any other Agreement
entered into pursuant hereto is contrary to, prohibited by or deemed invalid
under applicable law or regulation, such provision shall be inapplicable and
deemed omitted to the extent so contrary, prohibited or invalid, but the
remainder hereof shall not be invalidated thereby and shall be given full force
and effect so far as possible.
22. SURVIVAL. Notwithstanding anything to the contrary herein, the
provisions of Sections 12 through 29 (inclusive) shall survive and remain in
effect in accordance with their respective terms in the event the employment is
terminated.
23. WAIVERS. The failure or delay of Company at any time to require
performance by Employee of any provision of this Agreement, even if known, shall
not affect the right of Company to require performance of that provision or to
exercise any right, power or remedy hereunder, and any waiver by Company of any
breach of any provision of this Agreement should not be construed as a waiver of
any continuing or succeeding breach of such provision, a waiver of the provision
itself or a waiver of any right, power or remedy under this Agreement. No notice
to or demand on Employee in any case shall, of itself, entitle such party to any
other or further notice or demand in similar or other circumstances.
24. SPECIFIC PERFORMANCE. Employee acknowledges that the services to be
rendered by Employee hereunder are extraordinary and unique and are vital to the
success of the Company, and that damages at law would be an inadequate remedy
for any breach or threatened breach of this Agreement by Employee. Therefore, in
the event of a breach or threatened breach by Employee of any provision of this
Agreement, then Company shall be entitled, in addition to all other rights or
remedies, to injunctions restraining such breach, without being required to show
any actual damage or to post any bond or other security.
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25. NOTICES. All notices, requests, consents and other Communications
required or permitted under this Agreement shall be in writing (including telex
and telegraphic communication) and shall be (as elected by the person giving
such notice) hand delivered by messenger or courier service, telecommunicated,
or mailed (airmail if international) by registered or certified mail (postage
prepaid), return receipt requested, to the addresses listed above or to such
other address as any party may designate by notice complying with the terms of
this Section. Each such notice shall be deemed delivered (a) on the date
delivered if by personal delivery, (b) on the date telecommunicated if by
telegraph, (c) on the date of transmission with confirmed answer back if by
telex or telefax, and (d) on the date upon which the return receipt is sired or
delivery is refused or the notice is designated by the postal authorities as not
deliverable, as the case may be, if mailed.
26. JURISDICTION AND VENUE. The parties acknowledge that a substantial
portion of negotiations, anticipated performance and execution of this Agreement
occurred or shall occur in Palm Beach County, Florida. and that, therefore,
without limiting the jurisdiction or venue of any other federal or state courts,
each of the parties irrevocably and unconditionally (a) agrees that any suit,
action or legal proceeding arising out of or relating to this Agreement may be
brought in the courts of record of the State of Florida in Palm Beach County or
the court of the United States, Southern District of Florida, (b) consents to
the jurisdiction of each such court in any such suit, action or proceeding, (c)
waives any objection which it may have to the laying of venue of any such suit,
action or proceeding in any of such courts, and (d) agrees that service of any
court paper may be effected on such party by mail, as provided in this
Agreement, or in such other manner as may be provided under applicable laws or
court rules in said state.
27. REMEDIES CUMULATIVE. No remedy herein conferred upon any party is
intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
otherwise. No single or partial exercise by any party of any right, power or
remedy hereunder shall preclude any other or further exercise thereof.
28. EMPLOYEE REPRESENTATIONS, WARRANTIES, AND ACKNOWLEDGMENTS. Employee
represents and warrants to Company that he is fully empowered to enter and
perform his obligations under this Agreement and, without limitation, that he is
under no restrictive covenants to any person or entity that will be violated by
his entering into and performing this Agreement, and that this Agreement
constitutes the valid and legally binding obligation of Employee enforceable in
accordance with its terms, The execution and delivery of this Agreement by
Employee has been duly authorized by all necessary action. Employee shall
indemnify Company upon demand for and against any and all judgments, losses,
claims, damages, costs (including without limitation all legal fees and costs,
even if incident to appeals) incurred or suffered by any of them as a result of
the breach of the representations and warranties made in this section, or as a
result of the failure of the acknowledgment made in this section to be true and
correct at all times.
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29. GOVERNING LAW. This Agreement and all transactions contemplated by
this Agreement shall be governed by, and construed and enforced in accordance
with, the internal laws of the State of Florida without regard to principles of
conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Witnesses: XXXXXX TECHNOLOGIES, INC.
/s/ Illegible By: /s/ Xxxxx Xxxxxx
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Its: President and CEO
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EMPLOYEE:
/s/ Illegible /s/ Illegible
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/s/ Illegible
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EXHIBIT LIST
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Exhibit A - Job Title, Compensation and Other Miscellaneous Information
Exhibit B - Current Company Benefits to Which Employee is Entitled
Exhibit C - Invention Assignment and Confidentiality Agreement
Exhibit D - Non-Solicitation and Non-Compete Agreement
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EXHIBIT A TO EMPLOYMENT AGREEMENT
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1. Employee Name: Xxxxx Xxxxxxxxx
2. Job Title or Description: Vice President of Development
Reporting to (Supervisor): Xxx Xxxxxx, President/CEO
3. Annual Base Salary: $85,000 annually. In addition to the base salary:
- Employee shall be entitled to participate in the Company's Stock Option
Program for Employees.
- Additional stock options if any, will be granted on a discretionary
basis normally keyed to job performance.
- Employee will be eligible to receive a discretionary bonus based on
employee's performance towards meeting business objectives, provided
however, that employee must be employed at the end of a calendar
quarter or calendar year to be eligible to receive a cash or stock
bonus for that quarter and/or year.
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EXHIBIT B TO EMPLOYMENT AGREEMENT
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1. Employee Name: Xxxxx Xxxxxxxxx
2. Current Benefits to Which Employee is Entitled are as follows.
- RETIREMENT PLANNING
- HEALTH BENEFITS PROGRAM
- DISABILITY PROTECTION PROGRAM
The RETIREMENT PLANNING program consists of a 401 (k) Profit Sharing Plan which
allows employees to contribute on a tax deductible basis, up to a maximum of 15%
of their income.
In addition, the employer will match 25% of the Employer 401(k) percentage
election, up to a maximum of 8% deferral made by the Employee. Also, to inspire
excellence and profitability, the Plan Document provides for a Discretionary
Matching contribution which is relative to the performance of the company.
The HEALTH BENEFITS PROGRAM AND DISABILITY PROTECTION PROGRAM are structured
under Code Section 125 of the Internal Revenue Code Providing a reduction in
cost due to the pre-tax structure of these benefit plans, offering a reduction
in both Social Security Tax and Income Tax.
The Health Benefits Program is provided by The Prudential Insurance Company.
Employees have the opportunity to choose from two options which are the PRU CARE
PLUS or the PRU CARE H.M.O. Xxxxxx Technologies, Inc. contributes 75% of the
premium for the employee and 50% for dependents.
The Disability Protection Plan is individually designed and the employer
provides a 7% contribution to the Plan. This Plan also provides a guaranteed
cost and portability to the employee.
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EXHIBIT C TO EMPLOYMENT AGREEMENT
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INVENTION ASSIGNMENT AND CONFIDENTIALITY AGREEMENT
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THIS AGREEMENT is entered into this 6th day of August 1997, by and between
Xxxxxx Technologies, Inc. (DTI), and Xxxxx Xxxxxxxxx (hereinafter referred to as
"Employee") for and in consideration of Employee's continued employment or
engagement by DTI and the compensation that Employee shall receive during
Employee's employment or engagement, the parties agree as follows:
1. Both during and after Employee's employment or engagement:
a. Employee shall not disclose to anyone outside DTI any Confidential
Information. "Confidential Information" is defined as information which
has not been made publicly available by DTI or the third party owner of
such information, and
1. Which was developed by DTI, and relates to DTI's past, present, and
future business, including but not limited to developments (defined
below, technical data, specifications, designs, concepts, discoveries,
copyrights, improvements, product plans, research and development,
personal information, personnel information, financial information,
customer lists, leads, and/or marketing programs;
2. All documents marked as confidential and/or continuing such
information; and/or
3. All information DTI has acquired or received from a third party in
confidence.
b. Employee shall use Confidential Information only for DTI's business
purposes; and
c. Employee shall use any information received in confidence by DTI from any
third party only as permitted by written agreement between DTI and the
third party; and
d. Employee shall not be permitted to justify any disregard of the
obligations of Employee hereunder by using any of the Confidential
Information to guide a search by it of publications and other publicly
available information, selecting a series of items of knowledge from
unconnected sources and fitting them together by use of the integrated
disclosure of the information thereby to justify its disregard of the
obligations of confidence.
2. Employee shall not disclose to DTI, use in DTI's business, or cause DTI to
use any information or material which is confidential to any third party
unless DTI has a written agreement with the third party allowing DTI to
receive and use the confidential information or materials. Employee will not
incorporate into Employee's work any material which is subject to the
copyrights of any third party unless DTI has the right to copy and
incorporate such copyrighted material.
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3. When Employee is no longer employed or engaged by DTI, Employee shall
return to DTI all DTI property, and any and all third party property,
including all Confidential Information, drawings, computer programs or
copies thereof, documentation, notebooks and notes, reports and any
other materials on electronic or printed media.
4. Employee hereby grants, transfers and assigns to DTI all of his or her
rights, title and interest, if any, in any and all Development,
including rights co translation and reproductions in all forms or
formats and the copyrights and patent rights thereto, if any, and he or
she agrees that DTI may copyright said materials in DTI's name and
secure renewal, reissues and extensions of such copyrights for such
periods of time as the law may permit. 'Developments' is defined as any
idea, invention, process, design, concept, or useful article (whether
the design is ornamental or otherwise), computer program,
documentation, literary work, audiovisual work and any other work of
authorship, hereafter expressed, made or conceived solely or jointly by
employee during Employee's employment or engagement, whether or not
subject to patent, copyright or other forms of protection that:
a. Are related to the actual or anticipated business,
research or Development of DTI; and/or
b. Are suggested by or result from any task assigned to
Employee or work performed by Employee for or on
behalf of DTI.
Employee acknowledges that the copyrights in Developments created by
Employee in the scope of Employee's employment or engagement, belong to
DTI by operation of law, or may belong to a party engaged by DTI by
operation of law pursuant to a works for hire contract between DTI and
such contracted part. To the extent the copyrights in such works may
not be owned by DTI or such contracted party by operation of law,
Employee hereby assigns to DTI or such contracted party, as the case
may be, all copyrights (if any) Employee may have in Developments.
Items not assigned by this Section 4 are listed and described on the
attached "Schedule of Separate Works". Employee agrees not to include
any part of such items in the materials Employee prepares for DTI
unless and until such items are licensed or assigned to DTI under
separate written agreement.
At all times hereafter, Employee agrees to assist DTI at DTI's expense
in obtaining patents or copyrights on any Developments assigned to DTI
that DTI, in its sole discretion, seeks to patent or copyright.
Employee also agrees to sign all documents, and do all things
necessary to obtain such patents or copyrights, to further assign them
to DTI, and to reasonably protect them and DTI against infringement by
other parties at DTI expense with DTI prior approval.
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Employee irrevocably appoints any DTI-selected designee to act, at
all time hereafter, as his or her agent and attorney-in-fact to perform
all acts necessary to obtain patents and/or copyrights as required by
this Agreement if Employee (i) refuses to perform those acts or (ii) is
unavailable, within the meaning of the United States Patent and
Copyright laws. It is expressly intended by Employee that the foregoing
power of attorney is coupled with an interest.
Employee shall keep complete, accurate, and authentic information and
records on all Developments in the manner and form reasonably requested
by DTI. Such information and records, and all copies thereof, shall be
the property of DTI as to any Developments assigned DTI. Employee
agrees to promptly surrender such information and records at the
request of DTI as to any Developments.
5. In connection with any of the Developments assigned by Section 4,
Employee agrees:
a. To disclose them promptly to DTI, and
b. At DTI's request, to execute separate written assignments to
DTI and do all things reasonable necessary to enable DTI to
secure patents, register copyrights or obtain any other form
of protection for Developments in the United States and in
other countries. If Employee fails or is unable to do so,
Employee hereby authorizes DTI to act under power of
attorney for Employee to do all things to secure such
rights. In such cases, DTI assumes the liability of possible
violations of copyright and infringement of trade marks of
others.
c. To provide DTI with notice of any inadvertent disclosure of
Confidential Information related to any Development.
6. Without limitation of any other Agreement between Employee and DTI,
Employee shall not employ or engage or attempt to employ or engage the
services of any employee of DTI, either directly or through the agency
of a third party during the term of, or within six (6) months after,
the termination of Employee's employment or engagement with DTI.
7. DTI, its subsidiaries, licensees, successors or assigns, (direct or
indirect) are not required to designate Employee as author of any
Development when such Development is distributed publicly or otherwise.
Employee waives and releases, to the extent permitted by law, all
Employee's rights to such designation and any rights concerning Future
modifications of such Developments.
8. Rights, assignments, and representations made or granted by Employee in
this Agreement, are assignable by DTI and are for the benefit of DTI's
successors, assigns, and parties contracted with DTI.
9. Miscellaneous Provisions.
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a) Amendments. The provisions of this Agreement may not be
amended, supplemented, waived or changed orally, but only by
a writing signed by the party as to whom enforcement of any
such amendment, supplement, waiver or modification is sought
and making specific reference to this Agreement.
b) Further Assurances. The parties hereby agree from time to
time to execute and deliver such further and other
transfers, assignments and documents and do all matters and
things which may be convenient or necessary to more
effectively and completely carry out the intentions of this
Agreement
c) Brokers. Each of the parties represents and warrants that
such party has dealt with no broker or finder in connection
with any of the transactions contemplated by this Agreement,
and, insofar as such party knows, no broker or other person
is entitled to any commission or finder's fee in connection
with any of these transactions. The parties each agree to
indemnify and hold harmless one another against any loss,
liability, damage, cost, claim or expense incurred by reason
of any brokerage commission or finder's fee alleged to be
payable because of any act, omission or statement of the
indemnifying party.
d) Binding Effect. All of the terms and provisions of this
Agreement, whether so expressed or not, shall be binding
upon, inure to the benefit of, and be enforceable by the
parties and their respective administrators, executors,
legal representatives, heirs, successors and permitted
assigns.
e) Headings. The headings contained in this Agreement are for
convenience of reference only, are not to be considered a
part hereof and shall not limit or otherwise affect in any
way the meaning or interpretation of this Agreement.
f) Severability. If any provision of this Agreement or any
other Agreement entered into pursuant hereto is contrary to,
prohibited by or deemed invalid under applicable law or
regulation, such provision shall be inapplicable and deemed
omitted to the extent so contrary, prohibited or invalid,
but the remainder hereof shall not be invalidated thereby
and shall be given Full force and effect so far as possible.
If any provision of this Agreement may be construed in two
or more ways, one of which would render the provision
invalid or otherwise voidable or unenforceable and another
of which would render the provision valid and enforceable,
such provision shall have the meaning which renders it valid
and enforceable,
g) Survival. All covenants, agreements, representations and
warranties made herein or otherwise made in writing by any
party pursuant hereto shall survive the execution and
delivery of this Agreement and the termination of employment
or engagement of Employee.
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h) Waivers. The failure or delay of any party at any time to
require performance by another party of any provision of
this Agreement, even if known, shall nor affect the right of
such party to require performance of that provision or to
exercise any right, power or remedy hereunder. Any waiver by
any party of any breach of any provision of this Agreement
should not be construed as a waiver of any continuing or
succeeding breach of such provision, a waiver of the
provision itself, or a waiver of any right, power or remedy
under this Agreement. No notice to or demand on any party in
any case shall, of itself, entitle such party to any other
or further notice or demand in similar or other
circumstances.
i) Specific Performance. Each of the parties acknowledges that
the parties will be irreparably damage (and damages at law
would be an inadequate remedy) if this Agreement is not
specifically enforced. Therefore, in the event of a breach
or threatened breach by any party of any provision of this
Agreement, then the other parties shall be entitled, in
addition to all other rights or remedies, to injunctions
restraining such breach, without being required to show any
actual damage Or to post any bond or other security, and/or
to a decree for specific performance of the provisions of
this Agreement.
j) Jurisdiction and Venue. The parties acknowledge that a
substantial portion of negotiations and anticipated
performance and execution of this Agreement occurred or
shall occur in Palm Beach County, Florida, and that,
therefore, without limiting the jurisdiction or venue of any
other federal or state courts, each of the parties
irrevocably and unconditionally (a) agrees that any suit,
action or legal proceeding arising out of or relating to
this Agreement may be brought in the courts of record of the
State of Florida in Palm Beach County or the court of the
United States, Southern District of Florida, (b) consents to
the jurisdiction of each such court in any suit, action or
proceeding; (c) waives any objection which it may have to
the laying of venue of any such suit, action or proceeding
in any of such courts; and (d) agrees that service of any
court paper may be effected on such party by mail, as
provided in this Agreement, or in such other manner as may
be provided under applicable laws or court rules in said
state.
k) Remedies Cumulative. Except as otherwise expressly provided
herein, no remedy herein conferred upon any party is
intended to be exclusive of any other remedy, and each and
every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute or
otherwise. No single or partial exercise by any party of any
right, power or remedy hereunder shall preclude any other or
further exercise thereof
l) Governing Law. This Agreement and all transactions
contemplated by this Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws
of the State of Florida without regard to principles of
conflicts of laws.
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m) Preparation of Agreement. This Agreement shall not be
construed more strongly against any party regardless of who
is responsible for its preparation. The parties acknowledge
each contributed and is equally responsible for its
preparation.
n) Entire Agreement. This Agreement represents the entire
understanding and agreement among the parties with respect
to the subject matter hereof, and supersedes all other
negotiations, understandings and representations (if any)
made by and among such parties.
IN WITNESS WHEREOF, the parties have duly set their hands to this Agreement,
effective as of the date stated above.
XXXXXX TECHNOLOGIES, INC. EMPLOYEE
/s/ Xxxxx Xxxxxx /s/ Xxxxx Xxxxxxxxx
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DTI Authorized Signature Employee's Signature
8/6/97 Xxxxx Xxxxxxxxx
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Date Employee's Printed Name
8/6/97
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Date
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SCHEDULE OF SEPARATE WORKS
--------------------------
The following are works chat are not assigned by Section 4 of the Invention
Assignment and Confidentiality Agreement, in which Employee has any right,
title or interest, and which were conceived or written either wholly or in part
by Employee, prior to or outside the scope of Employee's employment by DTI.
DESCRIPTION: (If none, enter the word "None")
None
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Indicate any item listed above that has been published, registered as a
copyright, or is or has been the subject of a patent application:
None
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Indicate the name of such organization or third party who also has rights in any
of the listed items (such as former employers, partners, etc.):
None
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The foregoing is complete and accurate to the best of Employee's knowledge.
/s/ Xxxxx Xxxxxxxxx 8/6/97
----------------------------------------------------
Employee's Signature Date
Xxxxx Xxxxxxxxx
---------------------------------
Employee's Printed Name
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Exhibit D to Employment Agreement
NON-SOLICITATION AND NON-COMPETE AGREEMENT
THIS NON-SOLICITATION AND NON-COMPETE AGREEMENT ("Agreement") made as of this
6th day of August, 1997 by and between Xxxxxx Technologies, Inc., a Florida
corporation with its principal office at 000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxx
Xxxxx, Xxxxxxx 00000 (hereinafter called "Xxxxxx") and Xxxxx Xxxxxxxxx
(hereinafter "Employee").
WHEREAS, Employee is accepting employment with Xxxxxx; and
WHEREAS, the parties wish to reflect their agreement as to Employee's
promises regarding Employee's solicitation and competition which have induced
Xxxxxx to employ Employee at Employee's status with Xxxxxx, as well as Daleen's
extension of certain severance benefits to Employee.
NOW, THEREFORE, Employee and Xxxxxx (hereinafter sometimes referred to
collectively as the "parties" and separately as a "party") in consideration of
Employee's employment with Xxxxxx and the covenants hereinafter set forth and
other good and valuable consideration and intending to be legally bound hereby,
agree as follows:
1. Non-solicitation. Employee will not, at any time while employed by
Xxxxxx and for one (1) year after the termination of Employee's employment with
Xxxxxx for any reason whatsoever, directly or indirectly (by assisting or
suggesting to another, or otherwise) solicit otherwise attempt to induce or
accept the initiative of another in such regard, alone or by combining or
conspiring with anyone, any employees, officers, directors, agents,
consultants, representatives, contractors, suppliers, distributors, customers
or other business contacts (collectively, "Business Affiliates") of Xxxxxx to
terminate or modify its position as an employee, officer, director, agent,
consultant, representative, contractor, supplier, distributor, customer or
business contact with Xxxxxx or to compete against Xxxxxx.
2. Non-competition. (a) Employee shall not while employed by Xxxxxx, and
after the termination of said employment for any reason whatsoever for the time
period after such termination described in paragraph (c) below (the "No-Compete
Period"), directly or indirectly, as owner, officer, director, employee, agent,
lender, broker, investor, consultant or representative of any corporation or as
owner of any interest in, or as an employee, agent, consultant, partner,
affiliate or in any other capacity whatsoever or representative of any other
form of business association, sole proprietorship or partnership, conduct or be
related to any business in competition with any business of Xxxxxx currently or
in the future, including without limitation, billing and customer care software
systems and related professional services, as provided by Xxxxxx during the
period Employee is employed by Xxxxxx, except for businesses wherein Employee
is not working directly in billing and customer care software products and
related professional services and billing, and customer care software systems
and services are less than twenty-five percent (25%) of its total revenue
(herein referred to as the "Competitive Business") anywhere within the
territories, nor as to certain customers anywhere in the United States, both
listed on the "Territories and Customers" Exhibit to the Agreement, made a part
hereof, including
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without limitation, the solicitation of any customers, who were at any time
customers of Xxxxxx and in connection with a business which is competitive with
the Competitive Business except that such competitive activity will be
permitted as to business solicitation of and competition with Xxxxxx as to any
entity listed on an Exhibit to this Agreement made a part hereof identified as
a "No-Compete Exception", if any, subject to paragraph (c) below.
(b) In addition to, and not in limitation of the other provisions hereof
or of any other Agreement between Employee and Xxxxxx, Employee shall not at
any time in any manner other than in the ordinary course of good faith
competition only as permitted herein interfere with, disturb, disrupt, decrease
or otherwise jeopardize the business of Xxxxxx or do anything which may tend to
take away or diminish the trade, business or good will of Xxxxxx or give to any
person the benefit or advantage of Company's or Seller's methods of operation,
advertising, publicity, training, business customers or accounts, or any other
information relating or useful to Daleen's business.
(c) The No-Compete Period shall increase depending upon the duration of
Employee's employment with Xxxxxx as follows:
i) If Employee has completed ninety (90) days of employment with Xxxxxx
subject to the No-Compete Exception, the No-Compete Period will be
forty-five (45) days;
ii) If Employee has completed one hundred and eighty (180) days of
employment with Xxxxxx subject to the No-Compete Exception, the
No-Compete Period will be ninety (90) days;
iii) If Employee has completed two hundred seventy (270) days of employment
with Xxxxxx subject to the No-Compete Exception, the No-Compete Period
will be one hundred and eighty (180) days;
iv) If Employee has completed four hundred and fifty (450) days or more of
employment with Xxxxxx, the No-Compete Period will be one (1) year.
There will be no No-Compete Period if Employee has been employed for less
than ninety (90) days. In addition, the No-Compete Exception shall not apply as
to i) and ii) above.
3. Legal Effect. The foregoing covenants of Employee shall be deemed
severable, and the invalidity of any covenant shall not affect the validity or
enforceability of any other covenant. The existence of any claim or cause of
action by Employee against Xxxxxx predicated on this Agreement or otherwise,
shall not constitute a defense to the enforcement by Xxxxxx of these covenants.
Daleen's failure to object to any conduct in violation of this Agreement shall
not be deemed a waiver by Xxxxxx, but Xxxxxx may, if it wishes, specifically
waive any part or all of those covenants to the extent that such waiver is set
forth in writing duly authorized by Daleen's Board of Directors.
Employee acknowledges and confirms that the length of the term and
geographical restrictions contained herein are fair and reasonable and not the
result of overreaching, duress or coercion of any kind. Employee further
acknowledges and confirms that his or her full, uninhibited and faithful
observance of each of the covenants contained in this Agreement will not
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cause him or her any undue hardship, financial or otherwise, and that
enforcement of each of the covenants contained in this Agreement will not
impair his or her ability to obtain employment commensurate with his or her
abilities and on terms fully acceptable to him or her or otherwise to obtain
income required for the comfortable support of him or her and his or her family
and the satisfaction of the needs of his or her creditors. Employee
acknowledges and confirms that his or her special knowledge of the business of
Xxxxxx is such as would cause Xxxxxx serious injury and loss if he or she were
to use such ability and knowledge to the benefit of a competitor or were to
compete with Xxxxxx.
In the event that any court shall finally hold that the time or territory
or any other provision stated in this Agreement constitutes an unreasonable
restriction upon Employe, Employee hereby expressly agrees that the provisions
of this Agreement shall not be rendered void, but shall apply as to time and
territory or to such other extent as such court may judicially determine or
indicate constitutes a reasonable restriction under the circumstances involved.
Employee hereby agrees that in the event of the violation by him or her of any
of the provisions of this Agreement, Xxxxxx will be entitled if it so elects,
to institute and prosecute proceedings at law or in equity to obtain damages
with respect to such violation or to enforce the specific performance of this
Agreement by Employee or to enjoin Employee from engaging in any activity in
violation hereof without any requirement on the part of Xxxxxx to post any bond.
In the event Xxxxxx should bring any legal action or other proceeding for
the enforcement of this Agreement, the time for calculating the No-Compete
Period or terms of any other restriction herein shall not include the period of
time commencing with the filing of legal action or other proceeding to enforce
the terms of this Agreement through the date of final judgment or final
resolution, including all appeals, if any, of such legal action or other
proceeding.
4. Severance. In further consideration of the entering into of this
Agreement by Employee, Xxxxxx agrees to entitle Employee to a severance pay
benefit based upon base salary dependent upon the duration of Employee's
employment with Xxxxxx, determined as follows:
a) After six (6) months of employment, Employee shall be entitled to one
(1) week's severance base pay;
b) After one (1) year of employment, Employee shall be entitled to two (2)
week's severance base pay;
c) After each additional full year of employment with Xxxxxx, Employee
shall be entitled to an additional one (1) week of severance base pay,
up to a maximum of ten (10) weeks of base pay at the end of a full nine
(9) years of employment.
The foregoing severance benefit shall be paid by Xxxxxx in one lump
sum within ten (10) days from the date of the termination date of Employee's
employment by Xxxxxx if the benefit is five (5) weeks pay or less, and if more
than five (5) weeks any additional severance payment to which Employee is
entitled will be paid no later than one hundred and twenty (120) days after the
date of termination of said employment by Xxxxxx. No credit toward entitlement
of additional weeks of severance pay shall be earned for any partial year
worked, and Employee shall not be entitled to any severance benefit if
terminated by Xxxxxx for "cause" or if Employee voluntarily
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resigns from his or her employment with Xxxxxx. As used in this Agreement
determination for "cause" shall be defined as termination of Employee by Xxxxxx
in the event Employee has been convicted of any felony or, in the case of other
crimes, involving moral turpitude or dishonesty, or for any breach by Employee
of any agreement with Xxxxxx or of its employment or business policies
(including without limitation theft or misuse of company property), or for any
other act or omission by Employee which does not fit into the previous
categories but which Xxxxxx in good faith believes has occurred to its
detriment and about which Employee has received at least one (1) written
warning by Xxxxxx and despite such prior written warning, Employee has a second
occasion committed such act or omission.
5. Miscellaneous Provisions. The provisions of this Agreement may not be
amended, supplemented, waived or changed orally, but only by a writing signed
by the party as to whom enforcement of any such amendment, supplement, waiver
or modification is sought and making specific reference to this Agreement. All
of the terms and provisions of this Agreement, whether so expressed or not,
shall be binding upon, inure to the benefit of, and be enforceable by the
parties and their respective administrators, executors, legal representatives,
heirs, successors and permitted assigns. The headings contained in this
Agreement are for convenience of reference only, are not to be considered a
part hereof and shall not limit or otherwise affect in any way the meaning or
interpretation of this Agreement. The failure or delay of any party at any time
to require performance by another party of any provision of this Agreement,
even if known, shall not affect the right of such party to require performance
of that provision or to exercise any right, power or remedy hereunder. Any
waiver by any party of any breach of any provision of this Agreement should not
be construed as a waiver of any continuing or succeeding breach of such
provision, a waiver of the provision itself, or a waiver of any right, power or
remedy under this Agreement. No notice to or demand on any party in any case
shall, of itself, entitle such party to any other or further notice or demand
in similar or other circumstances.
The parties acknowledge that a substantial portion of negotiations,
anticipated performance and execution of this Agreement occurred or shall occur
in Palm Beach County, Florida, and that, therefore, without limiting the
jurisdiction or venue of any other federal or state courts, each of the parties
irrevocably and unconditionally (a) agrees that any suit, action or legal
proceeding arising out of or relating to this Agreement may be brought in the
courts of record of the State of Florida in Palm Beach County or the District
Court of the United States, Southern District of Florida; (b) consents to the
jurisdiction of each such court in any suit, action or proceeding; (c) waives
any objection which it may have to the laying of venue of any such suit, action
or proceeding in any of such courts; and (d) agrees that service of any court
paper may be effected on such party by mail, as provided in this Agreement, or
in such other manner as may be provided under applicable laws or court rules in
said state. Except as otherwise expressly provided herein, no remedy herein
conferred upon any party is intended to be exclusive of any other remedy, and
each and every such remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise. No single or partial exercise by any party
of any right, power or remedy hereunder shall preclude any other or further
exercise thereof. This Agreement and all transactions contemplated by this
Agreement shall be governed by, and construed and enforced in accordance with,
the internal laws of the State of Florida without regard to principles of
conflicts of laws.
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This Agreement shall not be construed more strongly against any party
regardless of who is responsible for its preparation. The parties acknowledge
each contributed and is equally responsible for its preparation. Any time
period provided for herein which shall end on a Saturday, Sunday or legal
holiday shall extend to 5:00 p.m. of the next full business day. This Agreement
represents the entire understanding and agreement amount the parties with
respect to the subject matter hereof, and supersedes all other negotiations,
understandings and representations (if any) made by and among such parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date written above.
Xxxxxx Technologies, Inc.
/s/ Xxxxx Xxxxxxxxx /s/ Xxxxx Xxxxxx
----------------------------------- -----------------------------------
Employee's Signature Its: President and CEO
Xxxxx Xxxxxxxxx Xxxxx Xxxxxx
----------------------------------- -----------------------------------
Printed Name Printed Name
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NO-COMPETE EXCEPTIONS
Exhibit to Non-Solicitation and Non-Compete Agreement of Xxxxx Xxxxxxxxx.
NONE.
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TERRITORIES AND CUSTOMERS
Exhibit to Non-Solicitation and Non-Compete Agreement of Xxxxx Xxxxxxxxx.
THE UNITED STATES OF AMERICA.
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