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EXHIBIT 10.10
RETENTION AGREEMENT
This Retention Agreement (this "Agreement") is entered into as of
<>, by and between <> <> ("Employee") and
Digital Commerce Corporation, a Delaware corporation ("Employer").
W I T N E S S E T H:
WHEREAS, Employer wishes to employ Employee and Employee wishes to
accept such employment; and
WHEREAS, the parties each desire to establish and set forth the terms
and conditions of Employee's employment with Employer.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. EMPLOYMENT. Employer agrees to employ Employee and Employee agrees
to be employed by Employer, for the term described on Annex A attached hereto
and incorporated herein by reference.
2. DUTIES AND RESPONSIBILITIES. Upon execution of this Agreement,
Employee shall diligently render his or her services to Employer in accordance
with the directives of Employer's Board of Directors and/or superior officers,
and shall use his or her best efforts and good faith in accomplishing such
directives. Employee agrees to devote his or her best efforts and substantially
all of his or her business time, abilities and attention to the business of
Employer. In addition, Employee shall perform the duties described on Annex B
attached hereto and incorporated herein by reference.
3. COMPENSATION. During the Employment Period (as defined in Annex A),
Employer will pay to Employee compensation in the amounts and form specified in
Annex C attached hereto and incorporated herein by reference, payable in twice
monthly installments or otherwise as is the policy of Employer from time to time
with respect to its employees on a general basis. In addition to such
compensation, Employee will be entitled to the benefits, if any, described in
Annex C during the Employment Period.
4. REIMBURSEMENT FOR EXPENSES. Employer shall reimburse Employee, in
accordance with Employer's normal reimbursement policy, for all reasonable
expenses incurred by Employee in the performance of Employee's duties pursuant
to this Agreement, but only after Employee submits a written, itemized and
signed list of such expenses on a form supplied by Employer for such purpose.
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5. TERMINATION.
(a) Employer may terminate Employee's employment under this
Agreement at any time and without prior written notice to
Employee for Cause (defined below) by delivery of written
notice of termination to Employee. "Cause" is defined to
include:
(1) fraud, misappropriation or embezzlement involving
Employer;
(2) felony conviction or conviction of a crime involving
moral turpitude or which, in the good faith opinion
of the Board of Directors (in their sole discretion),
brings Employee or Employer into disrepute or causes
material harm to Employer's business, customer or
supplier relations or financial condition or
prospects;
(3) Employee's failure to obey or carry out (A)
reasonable directives from Employer senior management
or (B) Employer's company policies;
(4) any material breach of this Agreement by Employee; or
(5) any material breach or threatened material breach of
(i) the Confidentiality Agreement and/or (ii) the
Noncompetition Agreement entered into by and between
Employer and Employee as of the date hereof pursuant
to the provisions of Paragraphs 6 and 7 of this
Agreement;
provided, however, in the case of subparagraphs (3) and (4) of
this Section 5(a), the Employee shall have been informed in
writing of the act, or failure to act, constituting Cause for
termination, and shall have failed to cure such act or failure
to act within thirty (30) days following receipt of written
notice thereof.
(b) Employer may terminate Employee's employment under this
Agreement at any time and without prior written notice to
Employee without Cause upon payment of the severance benefit
set forth in Annex D attached hereto.
(c) Employee's employment under this Agreement shall automatically
terminate upon Employee's death.
(d) Employee may terminate his or her employment hereunder upon
giving at least ninety (90) days' prior written notice. In the
event that Employee gives notice of termination of this
Agreement pursuant to this subsection, Employer shall have the
right to terminate Employee prior to the end of such ninety
(90) day period upon payment of Employee's compensation for
such ninety (90) day period.
6. CONFIDENTIAL INFORMATION. Employee and Employer shall enter into a
Confidentiality/Intellectual Property Agreement in the form of Annex E attached
hereto, the terms of which are incorporated herein by this reference.
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7. COVENANT NOT TO COMPETE. Employee and Employer shall enter into a
Noncompetition Agreement in the form of Annex F attached hereto, the terms of
which are incorporated herein by this reference.
8. INDEPENDENT COVENANTS. It is understood by and between the parties
hereto that the restrictive covenants set forth in the Confidentiality Agreement
and the Noncompetition Agreement are essential elements of this Agreement, and
that, but for the agreement of the Employee to comply with such covenants, the
Employer would not have agreed to enter into this Agreement. Such covenants by
the Employee shall be construed as agreements independent of any other provision
in this Agreement. The existence of any claim or cause of action of the Employee
against the Employer, whether predicated on this Agreement, or otherwise, shall
not constitute a defense to the enforcement by the Employer of such covenants.
9. RIGHT TO ENTER AGREEMENT. Employee represents and covenants to
Employer that he or she has full power and authority to enter into this
Agreement, the Confidentiality Agreement and the Non-Competition Agreement
(hereinafter collectively referred to as the "Agreements") and that the
execution, delivery and/or performance of the Agreements will not breach or
constitute a default of any other agreement or contract to which he or she is a
party or by which he or she is bound.
10. ASSIGNMENT. This Agreement and the rights and/or obligations of
Employee under this Agreement may not be assigned or delegated. Employer may
assign and/or delegate its rights and/or obligations hereunder to a subsidiary
or affiliate of Employer or to a successor corporation in the event of merger,
consolidation or transfer or sale of all or substantially all of the assets of
Employer or of Employer's business.
11. NOTICES. All notices, demands, requests or other communications
that may be or are required to be given, served or sent by either party to the
other party pursuant to this Agreement will be in writing and will be mailed by
first-class, registered or certified mail, return receipt requested, postage
prepaid, or transmitted by hand delivery, telegram or facsimile transmission
addressed as follows:
(a) If to Employer: Digital Commerce Corporation
000 Xxxxxxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile Transmission No.:
(000) 000-0000
Attn: Xxxx Xxxxxx, President
with a copy (which will
not constitute notice) to: Digital Commerce Corporation
000 Xxxxxxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile Transmission No.:
(000) 000-0000
Attn: Xxxxxx X. Xxxxxxxx, Xx.,
General Counsel
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(b) If to Employee: <><>
<>
<>
Facsimile Transmission No.:
---------
with a copy (which will
not constitute notice) to:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
Facsimile Transmission No.:
---------
Attn:
-------------------------------
Either party may designate by written notice a new address to which any notice,
demand, request or communication may thereafter be given, served or sent. Each
notice, demand, request or communication that is mailed, delivered or
transmitted in the manner described above will be deemed sufficiently given,
served, sent and received for all purposes at such time as it is delivered to
the addressee with the return receipt, the delivery receipt, the affidavit of
messenger or (with respect to a facsimile transmission) the answer back being
deemed conclusive evidence of such delivery or at such time as delivery is
refused by the addressee upon presentation.
12. GENDER. Words of any gender used in this Agreement will be held and
construed to include any other gender, and words in the singular number will be
held to include the plural, unless the context otherwise requires.
13. WAIVER. No failure or delay in exercising any right hereunder will
operate as a waiver thereof, nor will any single or partial exercise thereof
preclude any other or further exercise or the exercise of any other right.
14. SEVERABILITY. If any provision of this Agreement is determined to
be invalid or unenforceable, it will be deemed to be modified to the minimum
extent necessary to be valid and enforceable. If it cannot be so modified, it
will be deleted and the deletion will not affect the validity or enforceability
of any other provisions unless, as a result, the rights of either party are
materially diminished or the obligations and burdens of either party are
materially increased so as to be unjust or inequitable.
15. ENTIRE AGREEMENT. The terms and provisions contained in the
Agreements shall constitute the entire agreement between the parties with
respect to Employee's employment by Employer during the Employment Period.
Except as expressly set forth herein, nothing contained herein will be deemed to
alter any bonus, option or similar award previously granted to Employee.
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16. MODIFICATION OF AGREEMENT. This Agreement may not be changed or
modified or released or discharged or abandoned or otherwise terminated in whole
or in part, except by an instrument in writing signed by Employee and an officer
or other authorized representative of Employer.
17. UNDERSTANDING OF AGREEMENT. Employee represents and warrants that
he or she has read and understands each and every provision of this Agreement,
and Employee understands that he or she is free to obtain advice from legal
counsel of choice, if necessary and desired, in order to interpret any and all
provisions of this Agreement, and that Employee has freely and voluntarily
entered into this Agreement.
18. SURVIVAL. The terms of this Agreement shall remain in full force
and effect during the continuation of Employee's employment. The Confidentiality
Agreement, the Noncompetition Agreement (for the period described therein) and
paragraphs 10 through 21 of this Agreement will survive the termination of
Employee's employment for any reason.
19. APPLICABLE LAW. THIS AGREEMENT AND THE AGREEMENTS, INSTRUMENTS AND
DOCUMENTS CONTEMPLATED HEREBY WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF VIRGINIA (EXCLUSIVE OF CONFLICTS OF LAW
PRINCIPLES) AND WILL, TO THE MAXIMUM EXTENT PRACTICABLE, BE DEEMED TO CALL FOR
PERFORMANCE IN ALEXANDRIA, VIRGINIA. COURTS WITHIN THE STATE OF VIRGINIA WILL
HAVE JURISDICTION OVER ANY AND ALL DISPUTES BETWEEN THE PARTIES HERETO, WHETHER
IN LAW OR EQUITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
AGREEMENTS, INSTRUMENTS AND DOCUMENTS CONTEMPLATED HEREBY. THE PARTIES CONSENT
TO AND AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS. VENUE IN ANY SUCH
DISPUTE, WHETHER IN FEDERAL OR STATE COURT, WILL BE LAID IN ALEXANDRIA,
VIRGINIA. EACH OF THE PARTIES HEREBY WAIVES, AND AGREES NOT TO ASSERT IN ANY
SUCH DISPUTE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM THAT
(i) SUCH PARTY IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS,
(ii) SUCH PARTY AND SUCH PARTY'S PROPERTY IS IMMUNE FROM ANY LEGAL PROCESS
ISSUED BY SUCH COURTS OR (iii) ANY LITIGATION COMMENCED IN SUCH COURTS IS
BROUGHT IN AN INCONVENIENT FORUM.
20. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which will be deemed to be an original and all of which
will be deemed to be a single agreement. This Agreement will be considered fully
executed when all parties have executed an identical counterpart,
notwithstanding that all signatures may not appear on the same counterpart.
21. THIRD PARTIES. Except as expressly set forth or referred to in this
Agreement, nothing in this Agreement is intended or will be construed to confer
upon or give to any
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party other than the parties to this Agreement and their successors and
permitted assigns, if any, any rights or remedies under or by reason of this
Agreement.
22. HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
[BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EMPLOYEE: EMPLOYER:
DIGITAL COMMERCE CORPORATION
By:
---------------------------------- --------------------------------------
<><> Name:
------------------------------------
Title:
-----------------------------------
Dated: Dated:
---------------------------- -----------------------------------
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ANNEX A
TERM OF EMPLOYMENT
Employer agrees to employ Employee and Employee agrees to be employed
by Employer, for a term of twelve (12) months commencing on the date of the
Retention Agreement of which this Annex A is a part and ending on
<> (the "Employment Period"), unless earlier terminated as provided
herein. Unless Employee or Employer gives written notice of intention not to
renew this Agreement no later than sixty (60) days prior to its expiration, this
Agreement shall automatically continue in effect for, and the Employment Period
will automatically be extended by, successive additional twelve (12) month terms
subject to all other terms and conditions contained herein.
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ANNEX B
DUTIES OF EMPLOYEE
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ANNEX C
COMPENSATION AND BENEFITS
Employee's compensation shall be as set forth in that certain offer
letter, dated as of _____________________ between Employer and Employee.
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ANNEX D
SEVERANCE BENEFIT
I. If the Employer terminates the Employee's employment for reasons
other than for Cause (as defined in the Retention Agreement of which this Annex
is a part) or because of disability (as described in Section 5(a) of the
Retention Agreement):
(1) The Employer shall pay to the Employee: (a) his or her salary,
as in effect on the date of termination, through the effective
date of the termination of his or her employment (the
"Termination Date"), (b) all unpaid and pro rata amounts to
which the Employee is entitled as of the Termination Date
under any compensation plan or program of the Employer,
including, without limitation, accrued but unused vacation
time, and (c) all unpaid and pro rata amounts to which the
Employee is entitled under any incentive performance bonus as
of the end of the Employer's fiscal quarter in which the
Termination Date occurs. The Employer will make the payments
set forth in subparagraphs (b) and (c) at times mutually
agreed upon with the Employee.
(2) The Employer shall pay to the Employee fifty percent (50%) of
the Employee's salary for the lesser of (a) the remaining
duration of the Employment Period subsequent to the
Termination Date, or (b) one year from the Termination Date.
(3) Employee may continue to participate in, and accrue benefits
under, all insurance, retirement, pension, 401(k) plans,
thrift and other deferred compensation plans of the Employer
for the lesser of (a) the remaining term of the Employment
Period following the Termination Date or (b) six (6) months
following the Termination Date, except to the extent such
continued participation and/or accrual is prohibited by law,
or to the extent that such plan constitutes a "qualified plan"
under Section 401 of the Internal Revenue Code of 1986, as
amended (the "Code"), or by the terms of the plan, in which
case the Employer shall provide the Employee a substantially
equivalent, unfunded, nonqualified benefit.
II. If the Employer terminates the Employee's employment for Cause, or if the
Employee terminates his or her Employment for any reason, the Employee will only
be entitled to receive the amounts set forth in subparagraphs I.1(a) and I.1(b)
above.
ANNEX E
CONFIDENTIALITY/INTELLECTUAL PROPERTY AGREEMENT
This Confidentiality Agreement (this "Agreement"), is entered into as
of <>, by and between <> <> ("Employee") and
Digital Commerce Corporation, a Delaware corporation (the "Company").
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RECITALS
WHEREAS, Employee is employed by the Company;
WHEREAS, in the course of Employee's employment with the Company,
Employee may have access to or have disclosed to him or her Confidential
Information (as hereinafter defined); and
WHEREAS, the parties each desire to establish and set forth Employee's
obligations with respect to Confidential Information and certain other matters.
NOW THEREFORE, in consideration of the premises, the mutual
representations, warranties and covenants set forth herein and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. For the purposes of this Agreement, the following words
shall have the following meanings:
(a) "Affiliated Entity" means any entity which controls, is
controlled by or is under common control with the Company.
(b) "Copyright Registrations" means any domestic or foreign
copyright registrations and applications for such registrations,
including all or any portion of a Copyright Work or other subject
matter identified by any such registration or application.
(c) "Copyright Works" means materials for which copyright
protection may be obtained including, but not limited to: literary
works (including all written material), computer programs, artistic and
graphic works (including designs, graphs, drawings, blueprints and
other works), recordings, models, photographs, slides, motion pictures
and audio-visual works, regardless of the form or manner in which
documented or recorded;
(d) "Inventions" means inventions (whether patentable or not),
discoveries, improvements, designs and ideas (whether or not shown or
described in writing or reduced to practice) and may include
Confidential Information or Copyright Works;
(e) "Patent Applications" means any application to obtain a
Patent, including any Inventions or other subject matter described or
protected by such application.
(f) "Patents" means any domestic or foreign patents, including
any Inventions or other subject matter described or protected by such
patents.
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2. Confidential Information.
(a) Employee acknowledges that during his or her employment
with the Company, he or she will be provided with and become acquainted
with various trade secrets and other proprietary/confidential
information which are owned by the Company or any Affiliated Entity
and/or their respective customers and vendors and which are used in the
operation of the business of the Company or an Affiliated Entity,
including, without limitation, one or more of the following types of
information: customer lists; the nature and type of services rendered
to customers; fees paid by customers; methodologies; computer code and
programs; formulas; processes; compilations of information; drawings;
results of research proposals; job notes; reports; records; trade
secrets; and specifications. Employee agrees that he or she will not
disclose any trade secrets or other proprietary/confidential
information owned by the Company or any Affiliated Entity and/or their
respective customers and vendors whether or not listed by way of
example above (collectively, the "Confidential Information"), directly
or indirectly, or use such Confidential Information in any way, either
during the term of this Agreement or at any time thereafter, except as
may be required in the course of his or her employment with the Company
or by law.
(b) Employee shall not, without the prior written approval of
the Company, publish or authorize or purport to authorize anyone to
publish, either during Employee's employment with the Company or
subsequent thereto, any Confidential Information acquired in the course
of his or her employment.
(c) The prohibitions of this paragraph shall not apply to any
Confidential Information which (i) becomes generally available to the
public other than as a result of disclosure by Employee, (ii) was
available to Employee on a non-confidential basis prior to its
disclosure to Employee by the Company, or (iii) becomes available to
Employee on a non-confidential basis from a source other than the
Company when such source is entitled, to the best of Employee's
knowledge, to make the disclosure to Employee.
3. Inventions, Patents, and Copyright Works.
(a) Notification of the Company. Upon conception by Employee
during the period of his or her employment by the Company, all
Inventions, Confidential Information, and Copyright Works (1) which
relate to the actual or anticipated business, research or activities of
the Company or any Affiliated Entity at the time of conception; or (2)
which, directly or indirectly, result from or are suggested by any work
which Employee has done or may do for or on behalf of the Company or
any Affiliated Entity and/or their respective customers and vendors; or
(3) which are developed, tested, improved or investigated either in
part or entirely on time for which Employee was paid by the Company, or
using any resources of the Company (such Inventions, Confidential
Information and Copyright Works, together with the
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Inventions, Confidential Information, Copyright Works, Copyright
Registrations and/or Patents referenced in subsection (j) below, are
hereinafter collectively referred to as the "Employee Developed
Intellectual Property") shall become the property of the Company
whether or not patent or copyright registration applications are filed
for such subject matter. Employee agrees to communicate to the Company
promptly and fully all Employee Developed Intellectual Property made,
designed, created, or conceived by Employee (whether made, designed,
created, or conceived solely by Employee or jointly with others).
(b) Transfer of Rights. Employee agrees, during his or her
employment by the Company, to assign and transfer to the Company all of
Employee's right, title and interest in all Employee Developed
Intellectual Property prepared, made or conceived by or on behalf of
Employee (whether solely or jointly with others) during the period of
his or her employment by the Company. Employee also agrees to do all
things necessary to transfer to the Company all of Employee's right,
title and interest in and to all such Employee Developed Intellectual
Property as the Company may request, on such forms as the Company may
provide, at any time during or after Employee's employment by the
Company. This subsection shall continue in full force and effect after
termination of Employee's employment by the Company and after the
termination of this Agreement. Without limiting Employee's obligations
under any other provision of this Agreement, Employee will promptly and
fully assist the Company during and subsequent to his or her employment
in every lawful way to obtain, protect and enforce Employee's patent,
copyright, trade secret or other proprietary rights with respect to
Employee Developed Intellectual Property in any and all countries or
other jurisdictions. The Company will reimburse Employee for reasonable
expenses incurred by Employee in connection with such post-employment
assistance. Employee waives, to the fullest extent permitted by law,
all "moral rights" of Employee with respect to Employee Developed
Intellectual Property assigned and/or transferred to the Company.
(c) Exclusions. No provision in this Agreement is intended to
require assignment of any of Employee's rights in an Invention, Patent
or Copyright Work, for which no equipment, supplies, facilities,
Confidential Information, Copyright Works, Inventions or Patents of the
Company was used, and which was (1) developed entirely on Employee's
own time; (2) does not relate to the business of the Company or any
Affiliated Entity or to the actual or demonstrably anticipated research
or development of the Company or any Affiliated Entity; and (3) does
not result from any work performed by Employee for the Company or
assigned to Employee by the Company.
(d) Rights in Copyrights. Unless otherwise agreed in writing
by the Company, all Copyright Works prepared wholly or partially by
Employee (alone or jointly with others) within the scope of his or her
employment by the Company, shall be deemed a "work made for hire" under
the copyright laws and shall be owned by the Company. Employee
understands that any assignment or release of such works
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can only be made by the Company. During the period of his or her
employment by the Company, Employee shall not assist or work with any
third party that is not an employee of the Company to create or prepare
any Copyright Works without the prior written consent of the Company.
(e) Assistance in Preparation of Applications. Without
limiting Employee's obligations under any other provision of this
Agreement, Employee will promptly and fully assist, if requested by the
Company, in the preparation and filing of Patent Applications and
Copyright Registrations in any and all countries or other jurisdictions
selected by the Company and will assign to the Company all of
Employee's right, title, and interest in and to such Patent
Applications and Copyright Registrations, as well as all Inventions or
Copyright Works to which such Patent Applications and Copyright
Registrations pertain, to enable any such properties to be prosecuted
under the direction of the Company and to ensure that any Patent or
Copyright Registration obtained will validly issue to the Company. This
subsection shall continue in full force and effect after termination of
Employee's employment by the Company and after the termination of this
Agreement.
(f) Execute Documents. Without limiting Employee's obligations
under any other provision of this Agreement, Employee will promptly
sign any and all lawful papers, take all lawful oaths, and do all
lawful acts, including testifying, at the request of the Company, in
connection with the procurement, grant, enforcement, maintenance,
exploitation or defense against assertion of any patent, trademark,
copyright, trade secret or related rights, including applications for
protection or registration thereof. Such lawful papers include, but are
not limited to, any and all powers, assignments, affidavits,
declarations and other papers deemed by the Company to be necessary or
advisable. This subsection shall continue in full force and effect
after termination of Employee's employment by the Company and after the
termination of this Agreement.
(g) Keep Records. Without limiting Employee's obligations
under any other provision of this Agreement, Employee will keep and
regularly maintain adequate and current written records of all
Inventions, Confidential Information, and Copyright Works he or she
participates in creating, conceiving, developing or manufacturing. Such
records shall be kept and maintained in the form of notes, sketches,
drawings, reports or other documents relating thereto, bearing at least
the date of preparation and the signature or name of each person
contributing to the subject matter reflected in the record. Such
records, to the extent they pertain to Employee Developed Intellectual
Property, shall be and shall remain the exclusive property of the
Company and shall be made available to the Company at all times. All of
such records pertaining to work produced pursuant to subsection (c)
hereof will at all times remain the property of Employee. This
subsection shall continue in full force and effect after termination of
Employee's employment by the Company and after the termination of this
Agreement.
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(h) Return of Documents, Equipment, Etc. Without limiting
Employee's obligations under any other provision of this Agreement, all
writings, records, and other documents and things comprising,
containing, describing, discussing, explaining or evidencing any
Employee Developed Intellectual Property and all equipment, components,
parts, tools and the like in Employee's custody or possession that have
been obtained or prepared in the course of Employee's employment by the
Company shall be the exclusive property of the Company, shall not be
copied and/or removed from the premises of the Company, except in
pursuit of the business of the Company, and shall be delivered to the
Company, without Employee retaining any copies, upon notification of
the termination of Employee's employment by the Company or at any other
time requested by the Company. The Company shall have the right to
retain, access, and inspect all property of Employee of any kind in the
office, work area, and on the premises of the Company upon termination
of Employee's employment by the Company and at any time during
employment by the Company, to ensure compliance with the terms of this
Agreement. This subsection shall continue in full force and effect
after termination of Employee's employment by the Company and after the
termination of this Agreement.
(i) Other Contracts. Employee represents and warrants that he
or she is not a party to any existing contract relating to the granting
or assignment to others of any interest in Inventions, Confidential
Information, Copyright Works or Patents hereafter made by Employee
except insofar as copies of such contracts, if any, are attached to
Annex A of this Agreement.
(j) Assignment After Termination. Employee recognizes that
ideas, Inventions, Confidential Information, Copyright Works, Copyright
Registrations, Patent Applications or Patents relating to his or her
activities while working for the Company that are conceived or made by
Employee, alone or with others, within one (1) year after termination
of his or her employment may have been conceived in significant part
while Employee was employed by the Company. Accordingly, Employee
agrees that such ideas, Inventions, Confidential Information, Copyright
Works, Copyright Registrations, Patent Applications or Patents shall be
presumed to have been conceived and made during his or her employment
with the Company and are to be assigned to the Company pursuant to this
Agreement unless Employee can prove otherwise. This subsection shall
continue in full force and effect after termination of Employee's
employment by the Company and after the termination of this Agreement.
(k) Prior Conceptions. Employee has set forth on Annex B
attached hereto what he or she represents and warrants to be a complete
list of all Inventions, if any, or Copyright Works, including a brief
description thereof (without revealing any confidential or proprietary
information of any other party) which Employee conceived, created,
developed or made, or participated in the conception, creation,
development or making of prior to his or her employment by the Company
and for
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which Employee claims full or partial ownership or other interest, or
which are in the physical possession of a former employer and which in
either case are therefore excluded from the scope of this Agreement.
(l) Conflicts of Interest. Employee agrees that for the
duration of this Agreement, he or she will not engage, either directly
or indirectly, in any activity which might adversely affect the Company
or any Affiliated Entity (a "Conflict of Interest"), including
ownership of a material interest in any supplier, contractor,
distributor, subcontractor, customer or other entity with which the
Company does business or accepting any payment, service, loan, gift,
trip, entertainment or other favor from a supplier, contractor,
distributor, subcontractor, customer or other entity with which the
Company or any Affiliated Entity does business and that Employee will
promptly inform an officer of the Company as to each offer received by
Employee to engage in any such activity. Employee further agrees to
disclose to the Company any other facts of which Employee becomes aware
which might involve or give rise to a Conflict of Interest or potential
Conflict of Interest. The Company agrees that Employee is otherwise
free on his or her own time and at his or her own expense to engage in
other activities that do not create an actual or potential Conflict of
Interest.
4. Confidential Information of Prior Companies. Employee will not
disclose or use during the period of his or her employment by the Company any
proprietary or confidential information or Copyright Works of a third party in
fulfilling his or her duties under this Agreement.
5. Right to Enter Agreement. Employee represents and warrants to the
Company that he or she has full power and authority to enter into this Agreement
and that the execution, delivery and performance of this Agreement will not
breach or constitute a default of any other agreement or contract to which he or
she is a party or by which he or she is bound.
6. Injunctive Relief. Employee acknowledges and agrees that any breach
or violation by Employee of this Agreement will result in immediate and
irreparable injury and harm to the Company and will cause damage to the Company
in amounts difficult to ascertain. Accordingly, in the event of a breach or
threatened breach by Employee of any of the provisions of this Agreement,
Employee agrees that the Company, in addition to and not in limitation of any
other rights, remedies or damages available to the Company at law or in equity,
shall be entitled to a preliminary and permanent injunction in order to prevent
or restrain any such further breach by Employee or Employee's partners, agents,
representatives, servants, companies, employees and/or any and all persons
directly or indirectly acting for or with Employee. Employee acknowledges and
agrees that the remedies contained in this Paragraph 6 are reasonably related to
the injuries the Company may sustain as a result of Employee's breach of his or
her obligations under this Agreement, and are not a penalty. It is further
understood and agreed that no failure or delay by the Company in exercising any
right, power or privilege hereunder shall operate
-17-
18
as a waiver thereof, nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any right, power or
privilege hereunder.
7. Applicable Law. THIS AGREEMENT AND THE AGREEMENTS, INSTRUMENTS AND
DOCUMENTS CONTEMPLATED HEREBY WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF VIRGINIA (EXCLUSIVE OF CONFLICTS OF LAW
PRINCIPLES) AND WILL, TO THE MAXIMUM EXTENT PRACTICABLE, BE DEEMED TO CALL FOR
PERFORMANCE IN ALEXANDRIA, VIRGINIA. COURTS WITHIN THE STATE OF VIRGINIA WILL
HAVE JURISDICTION OVER ANY AND ALL DISPUTES BETWEEN THE PARTIES HERETO, WHETHER
IN LAW OR EQUITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
AGREEMENTS, INSTRUMENTS AND DOCUMENTS CONTEMPLATED HEREBY. THE PARTIES CONSENT
TO AND AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS. VENUE IN ANY SUCH
DISPUTE, WHETHER IN FEDERAL OR STATE COURT, WILL BE LAID IN ALEXANDRIA,
VIRGINIA. EACH OF THE PARTIES HEREBY WAIVES, AND AGREES NOT TO ASSERT IN ANY
SUCH DISPUTE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM THAT
(i) SUCH PARTY IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS,
(ii) SUCH PARTY AND SUCH PARTY'S PROPERTY IS IMMUNE FROM ANY LEGAL PROCESS
ISSUED BY SUCH COURTS OR (iii) ANY LITIGATION COMMENCED IN SUCH COURTS IS
BROUGHT IN AN INCONVENIENT FORUM.
8. Notices. All notices, demands, requests or other communications that
may be or are required to be given, served or sent by either party to the other
party pursuant to this Agreement will be in writing and will be mailed by
first-class, registered or certified mail, return receipt requested, postage
prepaid, or transmitted by hand delivery, telegram or facsimile transmission
addressed as follows:
(a) If to Company: Digital Commerce Corporation
000 Xxxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile Transmission No.:
(000) 000-0000
Attn: Xxxx Xxxxxx, President
with a copy (which will
not constitute notice) to: Digital Commerce Corporation
000 Xxxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile Transmission No.:
(000) 000-0000
Attn: Xxxxxx X. Xxxxxxxx, Xx.,
General Counsel
-18-
19
(b) If to Employee: <><>
<>
<>
Facsimile Transmission No.:
---------
with a copy (which will
not constitute notice) to:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
Facsimile Transmission No.:
---------
Attn:
-------------------------------
Either party may designate by written notice a new address to which any notice,
demand, request or communication may thereafter be given, served or sent. Each
notice, demand, request or communication that is mailed, delivered or
transmitted in the manner described above will be deemed sufficiently given,
served, sent and received for all purposes at such time as it is delivered to
the addressee with the return receipt, the delivery receipt, the affidavit of
messenger or (with respect to a facsimile transmission) the answer back being
deemed conclusive evidence of such delivery or at such time as delivery is
refused by the addressee upon presentation.
9. Gender. Words of any gender used in this Agreement will be held and
construed to include any other gender, and words in the singular number will be
held to include the plural, unless the context otherwise requires.
10. Entire Agreement. This Agreement represents the parties' entire
agreement with respect to the subject matter of this Agreement and supersedes
and replaces any prior agreement or understanding with respect to that subject
matter. This Agreement may not be amended or supplemented except pursuant to a
written instrument signed by the party against whom such amendment or supplement
is to be enforced.
11. Understanding of Agreement. Employee represents and warrants that
he or she has read and understands each and every provision of this Agreement,
and Employee understands that he or she is free to obtain advice from legal
counsel of choice, if necessary and desired, in order to interpret any and all
provisions of this Agreement, and that Employee has freely and voluntarily
entered into this Agreement.
12. Counterparts. This Agreement may be executed in multiple
counterparts, each of which will be deemed to be an original and all of which
will be deemed to be a single agreement. This Agreement will be considered fully
executed when all parties have executed an identical counterpart,
notwithstanding that all signatures may not appear on the same counterpart.
-19-
20
13. Severability. If any provision of this Agreement is determined to
be invalid or unenforceable, it will be deemed to be modified to the minimum
extent necessary to be valid and enforceable. If it cannot be so modified, it
will be deleted and the deletion will not affect the validity or enforceability
of any other provisions unless, as a result, the rights of either party are
materially diminished or the obligations and burdens of either party are
materially increased so as to be unjust or inequitable.
14. Third Parties. Except as expressly set forth or referred to in this
Agreement, nothing in this Agreement is intended or will be construed to confer
upon or give to any party other than the parties to this Agreement and their
successors and permitted assigns, if any, any rights or remedies under or by
reason of this Agreement. Notwithstanding the immediately preceding sentence,
Employee acknowledges and agrees that his or her obligations under this
Agreement are intended to benefit each Affiliated Entity and may therefore be
enforced by each such Affiliated Entity.
15. Assignment. This Agreement and the rights and/or obligations of
Employee under this Agreement may not be assigned or delegated. The Company may
assign or delegate its rights and/or obligations hereunder to a subsidiary or
affiliate of Company or to a successor entity in the event of merger,
consolidation or transfer or sale of all or substantially all of the assets of
the Company or of the Company's business.
16. Waiver. No failure or delay in exercising any right hereunder will
operate as a waiver thereof, nor will any single or partial exercise thereof
preclude any other or further exercise or the exercise of any other right.
17. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
18. Survival. As noted herein, this Agreement shall survive the
termination of Employee's employment with the Company and shall continue to be
of full force and effect.
[BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK.]
-20-
21
IN WITNESS WHEREOF, the undersigned have executed this Agreement
effective as of the date first above written.
COMPANY:
DIGITAL COMMERCE CORPORATION
By:
--------------------------------------
Name:
------------------------------
Title:
-----------------------------
EMPLOYEE:
-----------------------------------------
<><>
-21-
22
ANNEX A
OTHER CONTRACTS
23
ANNEX B
PRIOR CONCEPTIONS
24
ANNEX F
NONCOMPETITION AGREEMENT
This Noncompetition Agreement (this "Agreement"), is entered into as of
<>, by and between <> <> ("Employee") and
Digital Commerce Corporation, a Delaware corporation (the "Company"), and is
entered into in connection with that certain Retention Agreement, dated as of
the date hereof (the "Retention Agreement") by and between the parties hereto.
Employee recognizes and agrees that a portion of the compensation he or she is
to receive pursuant to the Retention Agreement is provided in consideration for
the agreements contained in this Agreement. Employee further acknowledges and
agrees that while employed pursuant to the Retention Agreement, Employee will be
provided with access to certain confidential information of the Company, will be
provided with specialized training on how to perform his or her duties, and will
be provided with contact with the Company's customers and potential customers.
In consideration of all of the foregoing, Employee agrees as follows:
1. Noncompetition. During the term of the Retention Agreement and for a
period of one (1) year from the date of termination of his or her employment
with the Company for any reason, Employee shall not directly or indirectly enter
into or attempt to enter into any employment, consulting or other business
relationship, anywhere in the world where the Company does business, with a
Major Competitor (as defined below) of the Company with respect to a Competing
Line of Business (as defined below) operated by such Major Competitor
(collectively, "Compete"). For the purposes of this Agreement, the following
terms shall have the meanings indicated below:
(a) Definitions. The words "directly or indirectly" as they
modify the word Compete shall mean: (i) acting as an agent,
representative, consultant, employee, director, independent contractor
or employee of Major Competitors (defined in (b) below) in a Competing
Line of Business (defined in (c) below), or (ii) participating in any
such competing entity as an owner, partner, limited partner, joint
venturer, creditor or stockholder (except as a stockholder holding less
than a five percent (5%) interest in a corporation or a limited partner
holding no more than a one percent (1%) interest in a limited
partnership).
(b) Major Competitors. The term "Major Competitor" shall
include the following organizations: Microsoft Corporation, America
Online and its Netscape subsidiary, Yahoo!, PurchasePro, Ariba,
Commerce One, VerticalNet, TRADE'ex, Chemdex, National Information
Consortium, GSA*Advantage, PeopleSoft, Oracle, SAP, American Management
Systems, CACI, IBM, and EDS and all affiliates and subsidiaries
thereof. This list of Major Competitors may be amended from time to
time by the Company upon ninety (90) days written notice to Employee.
(c) Competing Line of Business. Competing Line of Business
shall mean any person or entity engaged in (i) the development,
operation, maintenance or sales of e-commerce marketplace solutions for
the "business-to-government,"
25
"business-to-business" or "business-to-consumer" segments of the
e-commerce industry anywhere in the world, or (ii) any other
significant line of business in which the Company may engage from time
to time.
2. Nonsolicitation. For a period of one (1) year from the termination
of his or her employment with the Company for any reason, Employee shall not, on
his or her behalf or on behalf of any other person or entity, directly or
indirectly, solicit, attempt to solicit, or accept any business from any person
or entity which purchased any products or services from the Company or any
Affiliated Entity (as hereinafter defined) during the one (1) year period
immediately preceding the termination of Employee's employment with the Company.
As used herein, the term "Affiliated Entity" will be deemed to mean any entity
which controls, is controlled by or which is under common control with the
Company.
3. No Raiding. For a period of one (1) year from the termination of his
or her employment with the Company for any reason, Employee shall not directly
or indirectly, on his or her behalf or on behalf of any other person or entity:
(i) induce or attempt to induce any employee of the Company or any Affiliated
Entity to terminate his or her employment with the Company or any Affiliated
Entity; (ii) induce or attempt to induce any consultant or independent
contractor to the Company or any Affiliated Entity to terminate his or her
consultancy or contractual relationship with the Company or any Affiliated
Entity; and/or (iii) employ or retain, or attempt to employ or retain, any
employee of the Company or any Affiliated Entity.
4. Conflicts of Interest. Employee agrees that for the duration of the
Retention Agreement, he or she will not engage, either directly or indirectly,
in any activity which might adversely affect the Company or any Affiliated
Entity, (a "Conflict of Interest") including ownership of a material interest in
any supplier, contractor, distributor, subcontractor, customer or other entity
with which the Company does business or accepting any payment, service, loan,
gift, trip, entertainment, or other favor from a supplier, contractor,
distributor, subcontractor, customer or other entity with which the Company or
any Affiliated Entity does business, and that Employee will promptly inform an
officer of the Company as to each offer received by Employee to engage in any
such activity. Employee further agrees to disclose to the Company any other
facts of which Employee becomes aware which might involve or give rise to a
Conflict of Interest or potential Conflict of Interest.
5. Reaffirm Obligations. Upon termination of his or her employment with
the Company, Employee, if requested by the Company, shall reaffirm in writing
any of Employee's obligations set forth in this Agreement.
6. Representation. Employee represents and warrants to the Company that
his or her execution and delivery of this Agreement, together with his or her
performance in accordance with the terms of this Agreement, does not conflict
with, or result in any breach by Employee or any violation by Employee of, any
other agreement to which Employee is a party or by which Employee is bound.
7. Injunctive Relief. Employee acknowledges and agrees that any breach
or violation by Employee of this Agreement will result in immediate and
irreparable injury and
26
harm to the Company and will cause damage to the Company in amounts difficult to
ascertain. Accordingly, in the event of a breach or threatened breach by
Employee of any of the provisions of this Agreement, Employee agrees that the
Company, in addition to and not in limitation of any other rights, remedies or
damages available to the Company at law or in equity, shall be entitled to a
preliminary and permanent injunction in order to prevent or restrain any such
further breach by Employee or Employee's partners, agents, representatives,
servants, employers, employees and/or any and all persons directly or indirectly
acting for or with Employee. Employee acknowledges and agrees that the remedies
contained in this Paragraph 7 are reasonably related to the injuries the Company
may sustain as a result of Employee's breach of his or her obligations under
this Agreement, and are not a penalty. It is further understood and agreed that
no failure or delay by the Company in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any right, power or privilege hereunder.
8. Applicable Law. THIS AGREEMENT AND THE AGREEMENTS, INSTRUMENTS AND
DOCUMENTS CONTEMPLATED HEREBY WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF VIRGINIA (EXCLUSIVE OF CONFLICTS OF LAW
PRINCIPLES) AND WILL, TO THE MAXIMUM EXTENT PRACTICABLE, BE DEEMED TO CALL FOR
PERFORMANCE IN ALEXANDRIA, VIRGINIA. COURTS WITHIN THE STATE OF VIRGINIA WILL
HAVE JURISDICTION OVER ANY AND ALL DISPUTES BETWEEN THE PARTIES HERETO, WHETHER
IN LAW OR EQUITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
AGREEMENTS, INSTRUMENTS AND DOCUMENTS CONTEMPLATED HEREBY. THE PARTIES CONSENT
TO AND AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS. VENUE IN ANY SUCH
DISPUTE, WHETHER IN FEDERAL OR STATE COURT, WILL BE LAID IN ALEXANDRIA,
VIRGINIA. EACH OF THE PARTIES HEREBY WAIVES, AND AGREES NOT TO ASSERT IN ANY
SUCH DISPUTE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM THAT
(i) SUCH PARTY IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS,
(ii) SUCH PARTY AND SUCH PARTY'S PROPERTY IS IMMUNE FROM ANY LEGAL PROCESS
ISSUED BY SUCH COURTS OR (iii) ANY LITIGATION COMMENCED IN SUCH COURTS IS
BROUGHT IN AN INCONVENIENT FORUM.
9. Notices. All notices, demands, requests or other communications that
may be or are required to be given, served or sent by either party to the other
party pursuant to this Agreement will be in writing and will be mailed by
first-class, registered or certified mail, return receipt requested, postage
prepaid, or transmitted by hand delivery, telegram or facsimile transmission
addressed as follows:
(a) If to the Company: Digital Commerce Corporation
000 Xxxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile Transmission No.:
(000) 000-0000
Attn: Xxxx Xxxxxx, President
27
with a copy (which will
not constitute notice) to: Digital Commerce Corporation
000 Xxxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile Transmission No.:
(000) 000-0000
Attn: Xxxxxx X. Xxxxxxxx, Xx.,
General Counsel
(b) If to Employee: <><>
<>
<>
Facsimile Transmission No.:
---------
with a copy (which will
not constitute notice) to:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
Facsimile Transmission No.:
---------
Attn:
-------------------------------
Either party may designate by written notice a new address to which any notice,
demand, request or communication may thereafter be given, served or sent. Each
notice, demand, request or communication that is mailed, delivered or
transmitted in the manner described above will be deemed sufficiently given,
served, sent and received for all purposes at such time as it is delivered to
the addressee with the return receipt, the delivery receipt, the affidavit of
messenger or (with respect to a facsimile transmission) the answer back being
deemed conclusive evidence of such delivery or at such time as delivery is
refused by the addressee upon presentation.
10. Gender. Words of any gender used in this Agreement will be held and
construed to include any other gender, and words in the singular number will be
held to include the plural, unless the context otherwise requires.
11. Entire Agreement. This Agreement represents the parties' entire
agreement with respect to the subject matter of this Agreement and supersedes
and replaces any prior agreement or understanding with respect to that subject
matter. This Agreement may not be amended or supplemented except pursuant to a
written instrument signed by the party against whom such amendment or supplement
is to be enforced.
12. Understanding of Agreement. Employee represents and warrants that
he or she has read and understands each and every provision of this Agreement,
and Employee understands that he or she is free to obtain advice from legal
counsel of choice, if necessary and desired, in order to interpret any and all
provisions of this Agreement, and that Employee has freely and voluntarily
entered into this Agreement.
28
13. Counterparts. This Agreement may be executed in multiple
counterparts, each of which will be deemed to be an original and all of which
will be deemed to be a single agreement. This Agreement will be considered fully
executed when all parties have executed an identical counterpart,
notwithstanding that all signatures may not appear on the same counterpart.
14. Severability. If any provision of this Agreement is determined to
be invalid or unenforceable, it will be deemed to be modified to the minimum
extent necessary to be valid and enforceable. If it cannot be so modified, it
will be deleted and the deletion will not affect the validity or enforceability
of any other provisions unless, as a result, the rights of either party are
materially diminished or the obligations and burdens of either party are
materially increased so as to be unjust or inequitable.
15. Third Parties. Except as expressly set forth or referred to in this
Agreement, nothing in this Agreement is intended or will be construed to confer
upon or give to any party other than the parties to this Agreement and their
successors and permitted assigns, if any, any rights or remedies under or by
reason of this Agreement. Notwithstanding the immediately preceding sentence,
Employee acknowledges and agrees that his or her obligations under this
Agreement are intended to benefit each Affiliated Entity and may therefore be
enforced by such Affiliated Entity.
16. Assignment. This Agreement and the rights and/or obligations of
Employee under this Agreement may not be assigned or delegated. The Company may
assign and/or delegate its rights hereunder to a subsidiary or affiliate of the
Company or to a successor corporation in the event of merger, consolidation or
transfer or sale of all or substantially all of the assets of the Company or of
the Company's business.
17. Waiver. No failure or delay in exercising any right hereunder will
operate as a waiver thereof, nor will any single or partial exercise thereof
preclude any other or further exercise or the exercise of any other right.
18. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
[THE REMAINDER OF THIS PAGE HAS INTENTIONALLY BEEN LEFT BLANK]
29
IN WITNESS WHEREOF, the undersigned have executed this Agreement
effective as of the date first above written.
COMPANY:
DIGITAL COMMERCE CORPORATION
By:
--------------------------------------
Name:
------------------------------
Title:
-----------------------------
EMPLOYEE:
-----------------------------------------
<><>
