Exhibit 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of January 1,
2002, by and between printCafe, Inc., a Delaware corporation (the "Company"),
and Xxxxxx Xxxxxx (the "Employee").
WHEREAS, the Employee is employed by the Employer as Vice President and
Chief Technology Officer; and
WHEREAS, the terms and conditions of Employee's employment are
currently set forth in that certain Employment Agreement between the Employee
and Employer, dated as of March 10, 2000, and as the same may have been amended
from time to time thereafter (the "Predecessor Agreement"); and
WHEREAS, the Company and the Employee have agreed upon revised terms
and conditions for the Employee's continued employment with the Company, which
revised terms and conditions are set forth in this Agreement and are intended to
supersede and replace the Predecessor Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein and for other good and valuable consideration, the parties
agree as follows:
1. TERM. This Agreement shall commence on the date of this Agreement
and shall continue for a term of one (1) year, unless otherwise terminated
earlier in accordance with the terms hereof (the "Term"). The Term shall
automatically renew for additional one (1) year periods unless terminated by
either party upon giving sixty (60) days written notice prior to the expiration
of the Term or any automatic renewal thereof, or unless otherwise terminated
earlier in accordance with the terms hereof. It is understood and agreed that
Employee's employment with the Company will terminate at the end of the Term,
and that Employee shall not thereafter continue to be employed by the Company as
an at-will employee or in any other capacity, and that upon such termination,
except as otherwise determined by the board of directors of the Company (the
"Board"), any and all other assignments and appointments by Employee related to
his employment shall also terminate (including, without limitation, any position
on the Board or any assignment as a fiduciary of any Company employee benefit
plan).
2. POSITIONS AND DUTIES. During the Term, the Employee will be employed
as Senior Vice President and Chief Technology Officer of the Company and shall
be responsible for all matters and responsibilities incidental to these
positions. The Employee shall report to the Company's Chief Executive Officer
("CEO"). The Employee shall have the authority, power and responsibility to
perform, and shall perform, all duties in connection with these positions
consistent with the directives of the the CEO and the Board. To the extent
necessary to meet the Company's business goals, the CEO or the Board shall have
the discretion to modify the Employee's duties or assign
new duties to the Employee or to modify the Employee's reporting relationships;
provided, that said modifications are consistent with those duties typically
performed by an executive officer of the Company. The Employee further agrees to
devote his full business time, attention and efforts to the performance of his
duties hereunder, provided that the Employee may serve on corporate, civic or
charitable boards or committees, deliver lectures, fulfill speaking engagements,
teach at educational institutions or manage personal investments if such
activities do not individually or in the aggregate significantly interfere with
the performance of his duties under this Agreement.
3. SALARY. The Employee's salary shall be at an annual rate of $175,000
(the "Base Salary"), payable in accordance with the Company's customary payroll
practices. The Employee's Base Salary may be adjusted from time to time by the
Board in its sole discretion.
4. STOCK OPTIONS.
(a) Upon the execution of this Agreement, the Company shall grant to
the Employee options (the "Options") to purchase 170,000 shares of the Company's
Series E Preferred Stock ("Shares") at an exercise price of $1.14 per share.
Subject to (b) below, the Options shall vest over a period of four (4) years
(the "Vesting Term"), with six-forty-eighths (6/48ths) of the Options vesting on
June 30, 2002 and one forty-eighth (1/48th) vesting on the last day of each of
the succeeding forty-two calendar months respectively, and any Options that are
not otherwise vested upon the Employee's termination of employment for any
reason shall expire. The Options shall otherwise be subject to the terms of the
Company's 2002 Key Executive Stock Incentive Plan and the instrument providing
for the grant of such options to the Employee.
(b) In the event of any Change of Control (as hereinafter defined),
the Employee shall be treated, for purposes of determining the number of Options
which are vested as of the effective date of such Change of Control, as if the
Employee had been employed for six (6) months following such Change of Control.
"Change of Control" shall mean (1) a dissolution or liquidation of the
Company; (2) any sale or transfer of all or substantially all of the total
assets of the Company; (3) any merger, consolidation or other business
reorganization in which the holders of the Company's outstanding voting
securities immediately prior to such transaction do not hold, immediately
following such transaction, securities representing fifty percent (50%) or more
of the combined voting power of the outstanding securities of the surviving
entity; or (4) the acquisition by any person (within the meaning of Section
13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) (other than the Company, or any subsidiary, affiliate
(within the meaning of Rule 144 under the Securities Act of 1933, as amended) or
employee benefit plan of the Company), of beneficial ownership (within the
meaning of Rule 13d-3 or any successor rule or regulation promulgated under the
Exchange Act) of securities representing fifty percent (50%) or more of the
combined voting power of the then-outstanding securities of the Company.
Notwithstanding anything in the preceding
sentence, the acquisition by Creo SRL or its affiliates of beneficial ownership
of securities representing less than one hundred percent (100%) of the total
combined voting power of the outstanding securities of the Company shall not be
deemed a Change of Control.
5. BENEFITS AND EXPENSES.
(a) During the Term, the Company will provide benefits (including,
without limitation, fringe benefits and vacation allowances) to the Employee no
less favorable than those benefits made available to similarly situated
employees of the Company.
(b) During the Term, the Employee shall be reimbursed for all
reasonable and necessary expenses incurred in connection with the business of
the Company, upon the submission of appropriate documentation therefor. Such
reimbursement shall be payable in accordance with the Company's policies and
procedures.
6. CONFIDENTIALITY; NONSOLICITATION; NONCOMPETITION. The Employee
agrees to execute in favor of the Company and to be bound by the terms of the
Confidential Information, Noncompetition and Invention Assignment Agreement
attached as Appendix A hereto and made a part hereof (the "Confidentiality
Agreement").
7. CONTINUATION, DEATH, DISABILITY AND TERMINATION.
(a) In the event of the death of the Employee during the Term, this
Agreement and the Employee's employment shall terminate as of the date of death
and the Employee's estate shall be entitled to receive all Base Salary accrued,
but unpaid, through the date of death.
(b) In the event of a Disability (as hereinafter defined) of the
Employee during the Term, this Agreement and the Employee's employment shall
terminate as of the date of notice from the Company to the Employee terminating
his employment due to the Disability. In addition to any benefits to which the
Employee shall become entitled under the Company's benefit plans, the Employee
shall be entitled to receive his Base Salary accrued, but unpaid, through the
date of termination, and in addition shall be entitled to continue to receive
his Base Salary for one year following the date of termination, reduced by the
amount of any disability benefits received under a plan maintained by or
contributed to by the Company. For purposes of this Agreement, "Disability"
shall mean the Employee's inability, because of physical or mental illness or
incapacity or otherwise, to perform his duties under this Agreement (i) for a
period of 90 days or more in any period of 360 days or (ii) for any period of
sixty (60) consecutive days, in each case as reasonably determined by the Board.
(c) The Company may terminate this Agreement and the Employee's
employment hereunder at any time for "Cause", which shall mean the Employee's
(i) conviction of a felony or of a misdemeanor involving fraud, dishonesty or
moral turpitude, or (ii) willful or intentional material breach of this
Agreement or the Confidentiality Agreement that results in financial detriment
that is material to the Company and its affiliates taken as a whole, provided
that for purposes of clause (ii), "Cause" shall not include bad judgment,
negligence or any act or omission that the Employee believed in good faith to
have been in or not opposed to the interest of the Company. In the event the
Agreement is terminated by the Company for Cause, the Employee shall be entitled
to receive all Base Salary accrued, but unpaid, through the date of termination.
(d) The Company may terminate this Agreement and the Employee's
employment, without "Cause", at any time upon thirty (30) days' prior written
notice to the Employee. The Company may also terminate this Agreement and the
Employee's employment without "Cause" by giving notice of non-renewal in
accordance with Section 1 (in which case this Agreement and the Employee's
employment shall terminate at the end of the then-applicable Term). In the event
of termination of the Agreement by the Company without Cause or due to the
Company giving notice to the Employee of non-renewal, the Employee shall be
entitled to receive all Base Salary accrued, but unpaid, through the date of
termination. In addition, upon the Employee's execution of a general release of
claims in favor of the Company, the Employee shall be entitled to continue to
receive Employee's Base Salary for one year following such termination, as well
as continuation for one year of health, life, disability and other welfare
benefits on terms and conditions comparable to those applicable to active
Company employees. The general release referred to in the preceding sentence
shall not extend to any claims that the Employee may have under any
indemnification agreement between the Employee and the Company.
(e) The Employee shall have the right to terminate this Agreement
and his employment at any time upon thirty (30) days' prior written notice to
the Employee. The Employee shall also have the right to terminate this Agreement
and his employment by giving notice of non-renewal in accordance with Section 1
(in which case this Agreement and the Employee's employment shall terminate at
the end of the then-applicable Term). In the event the Agreement is terminated
by the Employee, the Employee shall be entitled to receive all Base Salary
accrued, but unpaid, through the date of termination. In addition, if the
Agreement is terminated by the Employee for "Good Reason," then, upon the
Employee's execution of a general release of claims in favor of the Company, the
Employee shall be entitled to continue to receive Employee's Base Salary for one
year following such termination as well as continuation for one year of health,
life, disability and other welfare benefits on terms and conditions comparable
to those applicable to active Company employees. The general release referred to
in the preceding sentence shall not extend to any claims that the Employee may
have under the indemnification provisions of this Agreement. "Good Reason" shall
mean termination of the Agreement and his employment by the Employee within
sixty (60) days after the occurrence of any of the following events: (i) a
material breach of this Agreement by the
Company, including, without limitation, the assignment to the Employee of duties
inconsistent with his position and duties set forth in this Agreement; (ii) a
material reduction in the Employee's title, status, authority or responsibility
at the Company; (iii) a reduction in Base Salary; or (iv) relocation of the
Employee's principal place of employment with the Company more than thirty (30)
miles from the previous location.
8. WITHHOLDING TAXES. The Company may withhold from any amounts payable
under this Agreement such federal, state and local taxes as may be required to
be withheld pursuant to any applicable law or regulation.
9. CERTAIN REPRESENTATIONS AND WARRANTIES OF THE EMPLOYEE. The Employee
represents and warrants to the Company that the Employee is not under any
contractual commitment prohibiting or limiting the Employee's employment by the
Company or inconsistent with the Employee's obligations set forth in this
Agreement.
10. NOTICES. For the purpose of this Agreement, any notice or demand
hereunder to or upon any party hereto required or permitted to be given or made
shall be deemed to have been duly given or made: if delivered personally, upon
receipt; if telecopied, when telecopied with confirmation of receipt, provided
that a written copy thereof is sent on the same day by postage paid first-class
mail; if sent by overnight delivery service, the next business day following
timely deposit with such overnight delivery service; and if sent by certified or
registered mail, three business days after timely deposit (postage prepaid) with
the U.S. mail service, to such party at the following address:
In the case of the Employee, to him at:
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or to the last known address of the Employee contained in
the personnel records of the Company.
In the case of the Company, to it at:
printCafe, Inc.
Forty 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
or such other address as either party hereto may at any time, or from time to
time, direct by notice given to the other party in accordance with this Section.
11. SEVERABILITY; ASSIGNMENT.
(a) If any portion of this Agreement is held invalid or
unenforceable by a court of competent jurisdiction, such portion shall be deemed
deleted as though it had never been included herein, but the remainder of this
Agreement shall remain in full force and effect.
(b) This Agreement shall not be assignable by the Employee without
the consent of the Company except pursuant to the laws of descent and
distribution and then only for purposes of enforcing the Employee's rights under
Section 7 and shall be assignable by the Company only with the consent of the
Employee; PROVIDED, HOWEVER, that the Company may assign its rights and
obligations under this Agreement without consent of the Employee in the event
that the Company shall effect a reorganization or consolidate or merge with,
sell all or substantially all of its equity or assets to, or enter into any
other transaction with, any other entity.
12. COOPERATION WITH REGARD TO LITIGATION; WAIVER OF TRIAL BY JURY.
(a) The Employee agrees to cooperate with the Company during the
Term and thereafter by making himself reasonably available to testify on behalf
of the Company or its affiliates, in any action, suit or proceeding, whether
civil, criminal, administrative, or investigative, and to assist the Company or
any of its affiliates in any such action, suit, or proceeding by providing
information and meeting and consulting with its counsel and representatives. The
Employee shall be fully reimbursed for any out-of-pocket expenses reasonably
incurred by the Employee in the course of such cooperation.
(b) Each of the parties to this Agreement irrevocably and
unconditionally waives the right to a trial by jury in any action, suit or
proceeding.
13. NO WAIVER. The failure of a party to insist upon strict adherence
to any term of this Agreement on any occasion shall not be considered a waiver
of such party's rights or deprive such party of the right thereafter to insist
upon strict adherence to that term or any other term of this Agreement.
14. SUCCESSORS; BINDING AGREEMENT. This Agreement shall inure to the
benefit of and be binding upon the Company, its successors and permitted
assigns. This Agreement shall also inure to the benefit of and be binding upon
the Employee, his executors, administrators and heirs. The Company shall make
its best effort to cause any successor (whether direct or indirect, by purchase,
merger, consolidation, reorganization or otherwise) to all or substantially all
of the business or assets of the Company, by agreement in form and substance
satisfactory to Executive, expressly to assume and agree to perform this
Agreement in the same manner and to the extent the Company would be required to
perform if no such succession had taken place.
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with, the laws of the Commonwealth of Pennsylvania without regard to
conflict or choice of law provisions that would defer to the substantive laws of
another jurisdiction.
16. ATTORNEYS' FEES. In the event of litigation to enforce or interpret
this Agreement, all litigation expenses, including by way of illustration, but
not limitation, all reasonable attorneys' fees and paralegal fees, costs and
expenses through all trials, appeals and proceedings, mediation, arbitration, or
any proceedings pursuant to the bankruptcy laws of the United States, shall be
paid to the prevailing party by the non-prevailing party; provided, that in no
event shall either party be liable for greater than $30,000 in litigation
expenses incurred by the other party unless it is determined that the breaching
party willfully breached this Agreement.
17. NO THIRD PARTY BENEFICIARIES. Nothing contained in this Agreement,
whether express or implied, is intended, or shall be deemed, to create or confer
any right, interest or remedy for the benefit of any person other than as
otherwise provided in this Agreement.
18. ENTIRE AGREEMENT. Except for the Confidentiality Agreement, any
indemnification agreement between the Company and the Employee, and any option
grant agreement, this Agreement supersedes all prior employment or other
agreements, negotiations and understandings of any kind between the parties with
respect to the subject matter hereof (including, without limitation, the
Predecessor Agreement) and contains all of the agreement and understandings
between the parties hereto with respect to the subject matter hereof. Any
representation, premise or condition, whether written or oral, not specifically
incorporated herein, shall have no binding effect upon the parties.
19. HEADINGS. The headings contained in this Agreement are included for
convenience and reference purposes only and shall be given no effect in the
construction or interpretation of this Agreement.
20. AMENDMENTS. No modification, termination or waiver of any provision
of this Agreement shall be valid unless it is in writing and signed by the party
against whom the same is sought to be enforced.
21. COUNTERPARTS. This Agreement may be signed in counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
EMPLOYEE
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
PRINTCAFE, INC.
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
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Title: President and C.E.O.
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APPENDIX A
PRINTCAFE, INC.
CONFIDENTIAL INFORMATION, NONCOMPETITION AND
INVENTION ASSIGNMENT AGREEMENT
As a condition of my employment being continued by printCafe, Inc., a
Delaware corporation, or any of its current or future parent, subsidiaries,
affiliates, successors or assigns (collectively, the "COMPANY"), and in
consideration of the Company's entering into an employment agreement with me
effective January 1, 2002 ("EMPLOYMENT AGREEMENT") and my receipt of the
compensation and benefits contemplated thereunder, I hereby agree to the
following:
1. EMPLOYMENT RELATIONSHIP. I understand and acknowledge that this
Agreement does not alter, amend or expand upon any rights I may have to continue
in the employ of, or the duration of my employment relationship with, the
Company under the Employment Agreement or under applicable law. Any employment
relationship between the Company and me shall be referred to herein as the
"RELATIONSHIP."
2. CONFIDENTIAL INFORMATION.
(a) COMPANY INFORMATION. I agree at all times during the term of my
Relationship with the Company and thereafter, to hold in strictest confidence,
and not to use, except for the benefit of the Company, or to disclose to any
person, firm, corporation or other entity without written authorization of the
Board of Directors of the Company, any Confidential Information of the Company
which I obtain or create. I further agree not to make copies of such
Confidential Information except as authorized by the Company. I understand that
"CONFIDENTIAL INFORMATION" means any Company proprietary information, technical
data, trade secrets or know-how, including, but not limited to, research,
product plans, products, services, suppliers, customer lists and customers
(including, but not limited to, customers of the Company on whom I called or
with whom I became acquainted during the Relationship), prices and costs,
markets, software, developments, inventions, laboratory notebooks, processes,
formulas, technology, designs, drawings, engineering, hardware configuration
information, marketing, licenses, finances, budgets or other business
information disclosed to me by the Company either directly or indirectly in
writing, orally or by drawings or observation of parts or equipment or created
by me during the period of the Relationship, whether or not during working
hours. I understand that "CONFIDENTIAL INFORMATION" includes, but is not limited
to, information pertaining to any aspects of the Company's business which is
either information not known by actual or potential competitors of the Company
or is proprietary information of the Company or its customers or suppliers,
whether of a technical nature or otherwise. I further understand that
Confidential Information does not include any of the foregoing items which has
become publicly and widely known and made generally available through no
wrongful act of mine or of others who were under confidentiality obligations as
to the item or items involved.
(b) FORMER EMPLOYER INFORMATION. I represent that my performance of
all terms of this Agreement as an employee of the Company has not breached and
will not breach any agreement to keep in confidence proprietary information,
knowledge or data acquired by me
in confidence or trust prior or subsequent to the commencement of my
Relationship with the Company, and I will not disclose to the Company, or induce
the Company to use, any inventions, confidential or proprietary information or
material belonging to any previous employer or any other party.
(c) THIRD PARTY INFORMATION. I recognize that the Company has
received and in the future will receive confidential or proprietary information
from third parties subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. I agree to hold all such confidential or proprietary information in
the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out my work for the
Company consistent with the Company's agreement with such third party.
3. INVENTIONS.
(a) INVENTIONS RETAINED AND LICENSED. I have attached hereto, as
EXHIBIT X, a list describing with particularity all inventions, original works
of authorship, developments, improvements, and trade secrets which were made by
me prior to the commencement of the Relationship (collectively referred to as
"PRIOR INVENTIONS"), which belong solely to me or belong to me jointly with
another, which relate in any way to any of the Company's proposed businesses,
products or research and development, and which are not assigned to the Company
hereunder; or, if no such list is attached, I represent that there are no such
Prior Inventions. If, in the course of my Relationship with the Company, I
incorporate into a Company product, process or machine a Prior Invention owned
by me or in which I have an interest, the Company is hereby granted and shall
have a non-exclusive, royalty-free, irrevocable, perpetual, worldwide license
(with the right to sublicense) to make, have made, copy, modify, make derivative
works of, use, sell and otherwise distribute such Prior Invention as part of or
in connection with such product, process or machine.
(b) ASSIGNMENT OF INVENTIONS. I agree that I will promptly make full
written disclosure to the Company, will hold in trust for the sole right and
benefit of the Company, and hereby assign to the Company, or its designee, all
my right, title and interest throughout the world in and to any and all
inventions, original works of authorship, developments, concepts, know-how,
improvements or trade secrets, whether or not patentable or registrable under
copyright or similar laws, which I may solely or jointly conceive or develop or
reduce to practice, or cause to be conceived or developed or reduced to
practice, during the period of time in which I am employed by the Company
(collectively referred to as "INVENTIONS"), except as provided in Section 4(e)
below. I further acknowledge that all inventions, original works of authorship,
developments, concepts, know-how, improvements or trade secrets which are made
by me (solely or jointly with others) within the scope of and during the period
of my Relationship with the Company are "WORKS MADE FOR HIRE" (to the greatest
extent permitted by applicable law) and are compensated by my salary, unless
regulated otherwise by the mandatory law of the state of California.
(c) MAINTENANCE OF RECORDS. I agree to keep and maintain adequate
and current written records of all Inventions made by me (solely or jointly with
others) during the term of my Relationship with the Company. The records may be
in the form of notes, sketches,
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drawings, flow charts, electronic data or recordings, laboratory notebooks, and
any other format. The records will be available to and remain the sole property
of the Company at all times. I agree not to remove such records from the
Company's place of business except as expressly permitted by Company policy
which may, from time to time, be revised at the sole election of the Company for
the purpose of furthering the Company's business.
(d) PATENT AND COPYRIGHT RIGHTS. I agree to assist the Company, or
its designee, at the Company's expense, in every proper way to secure the
Company's rights in the Inventions and any copyrights, patents, trademarks, mask
work rights, moral rights, or other intellectual property rights relating
thereto in any and all countries, including the disclosure to the Company of all
pertinent information and data with respect thereto, the execution of all
applications, specifications, oaths, assignments, recordations, and all other
instruments which the Company shall deem necessary in order to apply for,
obtain, maintain and transfer such rights and in order to assign and convey to
the Company, its successors, assigns and nominees the sole and exclusive rights,
title and interest in and to such Inventions, and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto. I further
agree that my obligation to execute or cause to be executed, when it is in my
power to do so, any such instrument or papers shall continue after the
termination of this Agreement until the expiration of the last such intellectual
property right to expire in any country of the world. If the Company is unable
because of my mental or physical incapacity or unavailability or for any other
reason to secure my signature to apply for or to pursue any application for any
United States or foreign patents or copyright registrations covering Inventions
or original works of authorship assigned to the Company as above, then I hereby
irrevocably designate and appoint the Company and its duly authorized officers
and agents as my agent and attorney in fact, to act for and in my behalf and
stead to execute and file any such applications and to do all other lawfully
permitted acts to further the application for, prosecution, issuance,
maintenance or transfer of letters patent or copyright registrations thereon
with the same legal force and effect as if originally executed by me. I hereby
waive and irrevocably quitclaim to the Company any and all claims, of any nature
whatsoever, which I now or hereafter have for infringement of any and all
proprietary rights assigned to the Company.
(e) STATUTORY NOTIFICATION. I am hereby notified that this Agreement
does not apply to any Inventions for which no equipment, supplies, facility or
trade secret information of the Company was used and which was developed
entirely on my own time, and (1) which does not relate (a) directly to the
business of the Company or (b) to the Company's actual or demonstrably
anticipated research or development, or (2) which does not result from any work
performed by me for the Company.
4. RETURNING COMPANY DOCUMENTS. I agree that, at the time of
termination of my Relationship with the Company, I will deliver to the Company
(and will not keep in my possession, recreate or deliver to anyone else) any and
all devices, records, data, notes, reports, proposals, lists, correspondence,
specifications, drawings, blueprints, sketches, laboratory notebooks, materials,
flow charts, equipment, other documents or property, or reproductions of any
aforementioned items developed by me pursuant to the Relationship or otherwise
belonging to the Company, its successors or assigns. I further agree that to any
property situated on the Company's premises and owned by the Company, including
disks and other storage media, filing cabinets or other work areas, is subject
to inspection by Company personnel at any time with or
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without notice. In the event of the termination of the Relationship, I agree to
sign and deliver the "TERMINATION CERTIFICATION" attached hereto as EXHIBIT Y.
5. NOTIFICATION TO NEW EMPLOYER. In the event that I leave the employ
of the Company, I hereby consent to notification by the Company to my new
employer about my rights and obligations under this Agreement.
6. SOLICITATION OF EMPLOYEES, CONSULTANTS AND OTHER PARTIES. I agree
that during the term of my Relationship with the Company, and for a period of
twenty-four (24) months immediately following the termination of my Relationship
with the Company for any reason, whether with or without cause, I shall not
either directly or indirectly solicit, induce, recruit or encourage any of the
Company's employees or consultants to terminate their relationship with the
Company, or take away such employees or consultants, or attempt to solicit,
induce, recruit, encourage or take away employees or consultants of the Company,
either for myself or for any other person or entity. Further, for a period of
twenty-four (24) months following termination of my Relationship with the
Company for any reason other than a termination of my Relationship by the
Company without Cause (as hereinafter defined), I shall not solicit any licensor
to or customer of the Company or licensee of the Company's products, in each
case, that are known to me, with respect to any business, products or services
that are competitive to the products or services offered by the Company or under
development as of the date of termination of my Relationship with the Company.
For the purposes of this Agreement, "Cause" shall have the same meaning as set
forth in the Employment Agreement.
7. NONCOMPETITION. I agree that during the term of my Relationship with
the Company, and for a period of (i) twelve (12) months immediately following
the termination of my Relationship with the Company in the event that my
Relationship is terminated (a) by the Company without Cause, (b) by the Company
pursuant to written notice of non-renewal in accordance with Section 1 of the
Employment Agreement, (c) by me due to Good Reason (as defined in the Employment
Agreement), or (d) by the Company pursuant to written notice due to a Disability
(as defined in the Employment Agreement), or (ii) twenty-four (24) months
immediately following the termination of my Relationship with the Company in the
event that my Relationship is terminated (x) by the Company for Cause, (y)
voluntarily by me upon written notice to the Company, or (z) voluntarily by me
by giving notice of non-renewal in accordance with Section 1 of the Employment
Agreement, I shall not, either directly or indirectly, alone or as a partner,
joint venturer, officer, director, employee, lender, consultant, agent,
independent contractor, stockholder or otherwise, and I shall not permit any
company or business organization directly or indirectly controlled by me or any
of my affiliates to, during the applicable period, engage in any Competing
Business in any place where the Company conducts business or has conducted
business (or has at any time actively explored conducting business) during the
twenty-four (24) months preceding my termination of my Relationship with the
Company. The passive ownership by me or my affiliates of not more than three
percent (3%) of the shares of capital stock of any corporation having a class of
equity securities actively traded on a national securities exchange or in the
over-the-counter market shall not be deemed, in and of itself, to violate the
prohibitions of this paragraph. "Competing Business" shall mean any business
involving the provision and development of infrastructure software and
Internet-based products for the printing industry.
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8. REPRESENTATIONS AND COVENANTS.
(a) FACILITATION OF AGREEMENT. I agree to execute promptly any
proper oath or verify any proper document required to carry out the terms of
this Agreement upon the Company's written request to do so.
(b) CONFLICTS. I represent that my performance of all the terms of
this Agreement will not breach any agreement to keep in confidence proprietary
information acquired by me in confidence or in trust prior to commencement of my
Relationship with the Company. I have not entered into, and I agree I will not
enter into, any oral or written agreement in conflict with any of the provisions
of this Agreement.
(c) VOLUNTARY EXECUTION. I certify and acknowledge that I have
carefully read all of the provisions of this Agreement and that I understand and
will fully and faithfully comply with such provisions.
(d) REASONABLENESS OF COVENANTS. I acknowledge that the provisions
of this agreement are reasonable and necessary for the protection of the Company
and are an essential inducement to the Company's entering into the Employment
Agreement and continuing the Relationship. Accordingly, I agree to be bound by
the provisions of this Agreement to the maximum extent permitted by law, it
being the intent and spirit of the parties that such provisions shall be fully
enforceable. However, I agree that, if any of the provisions hereof shall for
any reason be held to be excessively broad as to duration, geographical scope,
property or subject matter, such provision shall be construed by limiting and
reducing it so as to be enforceable to the extent compatible with the applicable
law as it shall herein pertain.
(e) REMEDIES. I acknowledge that the services to be rendered by me
as part of the Relationship are of a unique nature and that it would be
difficult or impossible to replace such services or to ascertain appropriate
monetary damages for any violation of this Agreement and that by reason thereof
I agree and consent that if I violate the provisions of this Agreement, the
Company, in addition to any other rights and remedies available under this
Agreement or otherwise, shall be entitled to an injunction to be issued or
specific performance to be required restricting me from committing or continuing
any such violation.
9. GENERAL PROVISIONS.
(a) GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the Commonwealth
of Pennsylvania, without giving effect to the principles of conflict of laws.
(b) ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
and understanding between the Company and me relating to the subject matter
herein and merges all prior discussions between us. No modification or amendment
to this Agreement, nor any waiver of any rights under this Agreement, will be
effective unless in writing signed by the party to be charged. Any subsequent
change or changes in my duties, obligations, rights or compensation will not
affect the validity or scope of this Agreement.
5
(c) SEVERABILITY. If one or more of the provisions in this Agreement
are deemed void by law, then the remaining provisions will continue in full
force and effect.
(d) SUCCESSORS AND ASSIGNS. This Agreement will be binding upon my
heirs, executors, administrators and other legal representatives and will be for
the benefit of the Company, its successors, and its assigns.
(e) SURVIVAL. The provisions of this Agreement shall survive the
termination of the Relationship and the assignment of this Agreement by the
Company to any successor in interest or other assignee.
(f) ADVICE OF COUNSEL. I ACKNOWLEDGE THAT, IN EXECUTING THIS
AGREEMENT, I HAVE HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL
COUNSEL, AND I HAVE READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS
AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF
THE DRAFTING OR PREPARATION HEREOF.
[Signature Page Follows]
6
The parties have executed this Agreement on the respective dates set
forth below:
COMPANY: EMPLOYEE:
PRINTCAFE, INC.
/s/ Xxxx X. Xxxx /s/ Xxxxxx X. Xxxxxx Xx.
--------------------------------- --------------------------------------------
Signature Signature
By: Xxxx X. Xxxx Xxxxxx X. Xxxxxx Xx.
----------------------------- --------------------------------------------
Printed Name
Title: President and CEO
-------------------------
Date: February 8, 2002 Date: 2/8/2002
------------------------- -------------------------------------
Address: 00 00xx Xxxxxx, 0xx Xxxxx Address:
------------------------- -----------------------------------
Xxxxxxxxxx, XX 00000
------------------------- -----------------------------------
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EXHIBIT X
---------
LIST OF PRIOR INVENTIONS
AND ORIGINAL WORKS OF AUTHORSHIP
EXCLUDED FROM SECTION 4
Identifying Number
Title Date or Brief Description
----- ---- --------------------
X No inventions or improvements
___ Additional Sheets Attached
Signature of Employee: /s/ Xxxxxx X. Xxxxxx Xx.
------------------------
Print Name of Employee: Xxxxxx X. Xxxxxx Xx.
--------------------
Date: 2/8/2002
--------
EXHIBIT Y
---------
TERMINATION CERTIFICATION
This is to certify that I do not have in my possession, nor have I
failed to return, any devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, laboratory
notebooks, flow charts, materials, equipment, other documents or property, or
copies or reproductions of any aforementioned items belonging to printCafe,
Inc., its subsidiaries, affiliates, successors or assigns (together the
"COMPANY").
I further certify that I have complied with all the terms of the
Company's Confidential Information, Noncompetition and Invention Assignment
Agreement signed by me, including the reporting of any inventions and original
works of authorship (as defined therein), conceived or made by me (solely or
jointly with others) covered by that agreement.
I further agree that, in compliance with the Confidential Information,
Noncompetition and Invention Assignment Agreement, I will preserve as
confidential all trade secrets, confidential knowledge, data or other
proprietary information relating to products, processes, know-how, designs,
formulas, developmental or experimental work, computer programs, data bases,
other original works of authorship, customer lists, business plans, financial
information or other subject matter pertaining to any business of the Company or
any of its employees, clients, consultants or licensees.
I further agree that for twenty-four (24) months from the date of this
Certificate, I shall not either directly or indirectly solicit, induce, recruit
or encourage any of the Company's employees or consultants to terminate their
relationship with the Company, or take away such employees or consultants, or
attempt to solicit, induce, recruit, encourage or take away employees or
consultants of the Company, either for myself or for any other person or entity.
Further, for a period of twenty-four (24) months from the date of this
Certificate, I shall not solicit any licensor to or customer of the Company or
licensee of the Company's products, in each case, that are known to me, with
respect to any business, products or services that are competitive to the
products or services offered by the Company or under development as of the date
hereof; provided, however, that the foregoing restrictions shall not be
applicable in the event that I have been terminated by the Company without
Cause. For the purposes of this Certificate , "Cause" shall have the meaning set
forth in my Employment Agreement. Finally, I agree that for a period of
twenty-four (24) months from the date of this Certificate (twelve (12) months if
my employment is being terminated by the Company without "Cause" or through
non-renewal of my Employment Agreement or by me for "Good Reason", all as
defined in my Employment Agreement) I shall not, either directly or indirectly,
alone or as a partner, joint venturer, officer, director, employee, lender,
consultant, agent, independent contractor, stockholder or otherwise, and I shall
not permit any company or business organization directly or indirectly
controlled by me or any of my affiliates to, engage in any Competing Business in
any place where the Company conducts business or has conducted business (or has
at any time actively explored conducting business) during the twenty-four (24)
months preceding the date of this Certificate. The passive ownership by me or my
affiliates of not more than three percent (3%) of the shares of capital stock of
any corporation having a class
of equity securities actively traded on a national securities exchange or in the
over-the-counter market shall not be deemed, in and of itself, to violate the
prohibitions of this paragraph. "Competing Business" shall mean any business
involving the provision and development of infrastructure software and
Internet-based products for the printing industry.
Date:
------------------------
----------------------------------------
(Employee's Signature)
----------------------------------------
(Type/Print Employee's Name)
