1
EXHIBIT 10.29
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("this Agreement") is made and effective this
9th day of August, 1999, by and between XXXXXX TECHNOLOGIES, INC., located at
000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, 00000 ("Company"), and Xxxxxxx X.
Xxxxxx residing at 0000 Xxxxxxx Xxxxx Xxxx, Xxxxx Xxxxxxx, XX 00000
("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
Vice President of Product Management & Marketing, 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 One Hundred Forty
Thousand and 00/100 Dollars ($140,000.00) 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. The
annual discretionary Bonus Compensation will be targeted at 25% of Base Salary
earnings which shall be for optimal performance to Company and personal
objectives as designated and determined solely by the President/COO.
Additionally you will have the opportunity to earn an initial performance bonus
based on your contributions during the first six months.
1
2
4. Business Expenses and Reimbursements. Employee shall be
entitled to reimbursement by the Company for ordinary and necessary business
expenses incurred by 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.
5. Benefits. Employee shall be entitled to receive the following
Benefits during the entire Employment Period:
(a) Employee agrees that the Base Salary, Bonus
Compensation, the Stock Option, and the Benefits and the other compensation
provided in accordance with this Agreement and, if applicable, the Relocation
Agreement, are the sole and exclusive compensation and benefits provided to the
Employee for his duties hereunder.
(b) Continuing throughout the Employment Period:
(i) Employee shall be eligible for participation
in all of the employee benefits including, without limitation, life insurance/AD
& D, supplemental life insurance, disability, profit sharing and retirement
benefits in accordance with established procedures and provided at any time by
the 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 make available health and
dental insurance providing full 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.
(iii) The Company will provide a discounted
membership at the Boca Raton Athletic Club. Initiation fees and monthly dues
will be subsidized by the Company.
6. Personal Time. Employee shall be entitled to Personal Time
(e.g. vacation) in accordance with the Personal Time policy of the Company in
effect from time to time.
7. Stock Options. In addition to Employee's Base Salary, Benefits
and Bonus Compensation, Employee shall be granted a stock option to purchase a
number of shares of common stock equal to Forty Thousand (40,000) at an exercise
price equal to fair market value
2
3
at time of grant, which options will vest over a four-year period in accordance
with the standard vesting schedule approved by the Board of Directors. The
options shall be granted to Employee pursuant to an Option Agreement
satisfactory as to its other terms to the Company, shall be incentive option
stock options to the extent permitted by law, and all of these grants and terms
are subject to the approval of the Board of Directors.
8. Registration Rights. After the declaration of effectiveness by
the SEC of the initial public offering of securities of the Company, in the
event the Company registers common stock held by other then-current employees of
Company, then the Company shall also register a prorata portion of the common
stock then held by Employee, excluding registration on Form S-8 or any other
registration of an employee benefit plan available to a class of employees, and
subject to standard underwriter cutback rights based on market conditions. The
Company shall not be required to register any share of Employee to the extent
such shares are eligible for sale (subject to volume limitations) under Rule 144
or any successor provision.
9. Compensation Review. The Chief Operating Officer ("COO") shall
from time to time, no less frequently than annually, review Employee's
compensation and may (in the COO's sole discretion) increase the compensation
provided for in Section 3 hereof. Any such increase in compensation shall be
valid only if in writing, executed by the COO, 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 "A" 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 (in the form of Exhibit "B" hereto) (the
"Non-Competition Agreement") which also, notwithstanding the at will nature of
the employment, provides for a severance benefit under certain circumstances.
Notwithstanding the foregoing, the parties agree and acknowledge that this
Section 11 and the Non-Competition Agreement shall be enforceable in all
respects, except with regard to any restriction on Employee's ability to
practice the profession of law in the State of Florida to the extent that such a
restriction violates any law or regulation that is applicable to the Company.
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 manner of
services in connection with his or her position or as otherwise designated by
the COO including, without limitation, primary
3
4
responsibility for such duties as shall be deemed by the COO appropriate to
carry out the policies and programs of the Board and as from time to time may be
delegated or assigned to him/her by the Board;
(b) Employee shall report directly to the COO 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
professional working 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/her 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 manner 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 CEO 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. Termination. The Company may, in its sole discretion,
terminate this Agreement for any reason or for no reason, with or without cause,
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 which is fully accrued.
15. 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 the Company, Employee agrees to
surrender to the Company, 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 Company which have been served by Employee.
16. Entire Agreement. This Agreement and, as applicable, the
Relocation 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, including the offer letter dated August 9, 1999 from the Company
to Employee.
4
5
17. 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.
18. Assignments. Employee shall not assign his rights and/or
obligations hereunder.
19. 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.
20. 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.
21. Survival. Notwithstanding anything to the contrary herein, the
provisions of Sections 10 through 28 (inclusive, except Section 13) shall
survive and remain in effect in accordance with their respective terms in the
event the employment is terminated.
22. 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.
23. 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 the 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.
24. 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
6
6
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 signed or delivery is refused or the notice is designated by the
postal authorities as not deliverable, as the case may be, if mailed.
25. 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.
26. 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.
27. 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.
28. 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.
7
7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXX TECHNOLOGIES, INC.
Its: COO: /s/ Xxxxx X. Xxxxx
-----------------------------
EMPLOYEE: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
8
8
EXHIBIT LIST
Exhibit A -Invention Assignment and Confidentiality Agreement
Exhibit B -Non-Solicitation and Non-Compete Agreement
1
9
EXHIBIT A TO EMPLOYMENT AGREEMENT
INVENTION ASSIGNMENT AND CONFIDENTIALITY AGREEMENT
THIS AGREEMENT is entered into this 9th day of August, by and between Xxxxxx
Technologies, Inc. (DTI), and Xxxxxxx X. Xxxxxx(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
2
10
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.
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 Developments,
including rights to 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 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
3
11
them and DTI against infringement by other parties at DTI expense with
DTI prior approval.
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.
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.
4
12
9. Miscellaneous Provisions.
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.
5
13
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 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.
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,
6
14
the internal laws of the State of Florida without regard to
principles of conflicts of laws.
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/ Xxxxxxx X. Xxxxxx
-------------------------- ----------------------------
DTI Authorized Signature Employee's Signature
8/9/99 Xxxxxxx X. Xxxxxx
-------------------------- ----------------------------
Date Employee's Printed Name
8/9/99
----------------------------
Date
7
15
SCHEDULE OF SEPARATE WORKS
The following are works that 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")
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-----------------------------------------------------------------------
Indicate any item listed above that has been published, registered as a
copyright, or is or has been the subject of a patent application:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-----------------------------------------------------------------------
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.):
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-----------------------------------------------------------------------
The foregoing is complete and accurate to the best of Employee's knowledge.
/s/ Xxxxxxx X. Xxxxxx 8/9/99
-----------------------------------------------------------
Employee's Signature Date
Xxxxxxx X. Xxxxxx
-----------------------------
Employee's Printed Name
8
16
EXHIBIT B TO EMPLOYMENT AGREEMENT
NON-SOLICITATION AND NON-COMPETE AGREEMENT
THIS NON-SOLICITATION AND NON-COMPETE AGREEMENT ("Agreement") made as of this
9th day of August, 1999, by and between Xxxxxx Technologies, Inc, with its
principal office at 000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000
(hereinafter called "Xxxxxx") and Xxxxxxx X. Xxxxxx (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 now or in the future, including without limitation, in the
Billing and Customer Care industry (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 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
9
17
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 or permit to be done
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 Non-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 less of
employment there will be no Non-Compete Period;
ii) If Employee has completed more than ninety (90), but less
than one hundred eighty (180) days of employment, there will
be a six (6) month Non-Compete Period;
iii) If Employee has completed more than one hundred eighty (180)
days of employment the Non-Compete Period will be one (1)
year;
DTI reserves the right to waive the Non-Compete Period at its option
in return for the payment of the severance benefit described in Section 4.
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 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
10
18
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 Employee, 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) Ninety days (90) days or less of employment will result in no
severance benefit;
b) Beyond ninety (90) days of employment, the severance benefit
will be equal to the length of the Non-Compete Period.
c) If a Non-Compete Period is applicable and DTI waives the
Non-Compete Period or any portion of it, there shall be no
severance benefit paid for that period waived subject to a
six (6) month minimum severance.
The foregoing severance benefit shall be paid by Xxxxxx in accordance
with DTI's current payroll policies. Employee shall not be entitled to any
severance benefit if terminated by Xxxxxx for "cause" or if Employee
voluntarily resigns from his or her employment with Xxxxxx subject to the
provisions of the Non-Compete period in Section 2(c). 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).
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
11
19
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. 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.
12
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
written above.
Xxxxxx Technologies, Inc.
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxx
--------------------------- -----------------------------
Employee's Signature Its: COO
Xxxxxxx X. Xxxxxx Xxxxx X. Xxxxx
--------------------------- -----------------------------
Printed Name Printed Name
13
21
NO-COMPETE EXCEPTIONS
Exhibit to Non-Solicitation and Non-Compete Agreement of Xxxxxxx X. Xxxxxx
NONE.
14
22
TERRITORIES AND CUSTOMERS
Exhibit to Non-Solicitation and Non-Compete Agreement of Xxxxxxx X. Xxxxxx.
THE WORLD.
15
