Executive Employment Agreement
Exhibit 10.4
This
Employment Agreement (“Agreement”) is made and entered into as of this 1st
date of June, 2021 (the “Effective
Date”), by and between
Xxxxx Xxxxxx (“Executive”) and Crexendo, Inc, a Nevada Corporation
(“Company”).
WHEREAS, Executive was previously employed by
NetSapiens, Inc. (“NetSapiens”);
WHEREAS,
following the acquisition of NetSapiens by the Company, Company
desires to employ Executive on the terms and conditions set forth
herein; and
WHEREAS,
Executive desires to be employed by Company on such terms and
conditions.
NOW,
THEREFORE, in consideration of the mutual covenants, promises, and
obligations set forth herein, the parties agree as
follows:
1. Term.
Executive’s initial term of employment hereunder shall begin
on the Effective Date and shall remain in effect through the date
two years thereafter (“Initial Term”), unless terminated prior thereto as
provided in Section 4. The Initial Term shall be extended from year
to year, unless this Agreement is terminated pursuant to Section 4
or either party to this Agreement gives written notice to the other
of a desire to change, amend, modify, or terminate this Agreement,
at least sixty (60) days prior to the end of the then-existing term
of the Agreement. The Initial Term and any renewal terms shall be
hereinafter referred to as the “Employment
Term.”
2. Position
and Duties.
2.1 Position.
During the Employment Term, Executive shall serve as the Executive
Vice President of Company, reporting to Company’s Chief
Executive Officer. In such position, Executive shall have such
duties, authority, and responsibilities as are consistent with
Executive's position and shall carry out and execute such
additional lawful duties as are assigned to Executive from time to
time.
2.2 Duties.
During the Employment Term, Executive shall devote substantially
all of Executive’s business time and attention to the
performance of Executive’s duties hereunder and will not
engage in any other business, profession, or occupation for
compensation or otherwise which would conflict or interfere with
the performance of such services either directly or indirectly
without the prior written consent of the Board. Notwithstanding the
foregoing, Executive may personally trade in stock, bonds,
securities, commodities or real estate investments for his own
benefit.
3. Compensation.
3.1 Base
Salary. Company shall pay
Executive an annual base salary of $323,950 in near equal, periodic
installments in accordance with Company’s customary payroll
practices and applicable wage payment laws, but no less frequently
than monthly. Executive’s annual base salary, as in effect
from time to time, is hereinafter referred to as
“Base
Salary.” It is not
expected that Executive’s Base Salary will increase until the
expiration of the Initial Term.
3.2 Annual
Bonus. It is understood and agreed that Executive is not
expected to receive any Bonus for the initial year of the Initial
Term. Executive shall be eligible to receive an annual bonus
(“Annual Bonus”) beginning in the second year of the
Initial Term, i.e., in 2022. The amount and conditions for achievement
of any Annual Bonus shall be set by the “Compensation
Committee” of the Board.
Executive shall be permitted to make recommendations to the
Compensation Committee regarding Executive’s eligibility for
and entitlement to an Annual Bonus, and regarding the amount
thereof, but the final decision regarding awards of Annual Bonuses
resides within the sole and absolute discretion of the Compensation
Committee.
3.3 Equity
Awards. It is understood and
agreed that Executive is not expected to receive any Equity Awards
for the initial year of the Initial Term. Beginning in the second
year of the Initial Term, i.e., in 2022, Executive shall be eligible to
participate in the Crexendo Inc. 2013 Long-Term Incentive Stock
Option Plan (the “Plan”) or any successor plan, subject to the
terms of the Plan or successor plan, as determined by the
Committee, in its sole and absolute discretion.
3.4 Fringe
Benefits and Perquisites.
During the Employment Term, Executive shall be entitled to fringe
benefits and perquisites consistent with those provided to
similarly situated executives of Company. From the Effective Date
until December 31, 2021, such fringe benefits and perquisites shall
remain the same or substantially similar to those provided to
Executive by NetSapiens prior to the Effective
Date.
3.5 Employee
Benefits. During the Employment
Term, Executive shall be entitled to participate in all employee
benefit plans, practices, and programs maintained by Company, as in
effect from time to time (collectively, “Employee Benefit
Plans”), on a basis which
is no less favorable than is provided to other similarly situated
executives of Company, to the extent consistent with applicable law
and the terms of the applicable Employee Benefit Plans. Company
reserves the right to amend or terminate any Employee Benefit Plans
at any time in its sole discretion, subject to the terms of this
Agreement, such Employee Benefit Plan, and applicable
law.
3.6 Paid
Time Off. Beginning on the
Effective Date and thereafter for the duration of the Employment
Term, Executive shall be entitled to paid time off
(PTO) (prorated for partial years) in accordance with
Company’s then applicable policies, as in effect from time to
time. Executive shall receive other paid time off in accordance
with Company’s policies for executive officers as such
policies may exist from time to time and as required by applicable
law.
3.7 Business
Expenses. Executive shall be
entitled to reimbursement for all reasonable and necessary
out-of-pocket business, entertainment, and travel expenses incurred
by Executive in connection with the performance of
Executive’s duties hereunder in accordance with
Company’s expense reimbursement policies and
procedures.
3.8 Authority.
For the first year of the Initial Term, Executive, as well as other
former executives and business unit management of NetSapiens, shall
have control and autonomy over the expense and compensation
management of their business units, provided:
(a) any
expenditures have been included in the Company’s approved
budget;
(b) Key
metrics are not compromised or plans with respect thereto not
changed by leaders of business units without approval of Executive
or other former NetSapiens executives;
(c) Certain
expenses may be required by Company policy to be approved by the
Company’s Chief Executive Officer or Board for purposes of
compliance with Section 404 of Regulation S-K.
4. Termination
of Employment. The Employment
Term and Executive’s employment hereunder may be terminated
by either Company or Executive for the reasons set forth in this
Section 4.
4.1 Termination
for Cause or Without Good Reason.
(a) Executive’s
employment hereunder may be terminated by Company for Cause or by
Executive without Good Reason. In either case, Executive shall be
entitled to receive upon termination of employment:
(i) any
accrued but unpaid Base Salary and accrued but unused PTO, which
shall be paid at the time of Executive’s
termination;
(ii) reimbursement
for unreimbursed business expenses properly incurred by Executive,
which shall be subject to and paid in accordance with
Company’s expense reimbursement policy; and
(iii) such
employee benefits (including equity compensation), if any, to which
Executive may be entitled under Company’s employee benefit
plans as of the date of Executive’s termination; provided
that in no event shall Executive be entitled to any payments in the
nature of severance or termination payments except as specifically
provided herein.
Items 4.1(a)(i) through 4.1(a)(iii) are referred
to herein collectively as the “Accrued
Amounts.”
(b) For
purposes of this Agreement, “Cause” shall mean:
(i) Executive’s
willful failure to perform Executive’s duties (other than any
such failure resulting from incapacity due to physical or mental
illness);
(ii) Executive’s
willful failure to comply with any valid and legal directive of the
Board or Chief Executive Officer;
(iii) Executive’s
engagement in acts of dishonesty, illegal conduct, or gross
misconduct, which is, in each case, materially injurious to Company
or its affiliates;
(iv) Executive’s
embezzlement, misappropriation, or fraud, whether or not related to
Executive’s employment with Company;
(v) Executive’s
conviction of or plea of guilty or nolo contendere
to a crime that constitutes a felony
(or state law equivalent) or a crime that constitutes a misdemeanor
involving moral turpitude;
(vi) Executive’s
material violation of Company’s written policies or codes of
conduct, including written policies related to discrimination,
harassment, performance of illegal or unethical activities, and
ethical misconduct;
(vii) Executive’s
failure to participate in or cooperate with an investigation of a
report of discrimination, harassment, performance of illegal or
unethical activities, or ethical misconduct, whether or not
Executive is the subject of the investigation;
(viii) Executive’s
violation of any agreement pertaining to the confidentiality of
Company’s information and trade secrets, solicitation of
customers, vendors, suppliers, or employees of Company, or
assignment of intellectual property; and
(ix) Executive’s
material breach of any obligation under this Agreement or any other
written agreement between Executive and Company.
For
purposes of this provision, none of Executive’s acts or
failures to act shall be considered “willful” unless
Executive acts, or fails to act, in bad faith. Executive’s
actions, or failures to act, based upon authority given pursuant to
a resolution duly adopted by the Board or upon the advice of
counsel for Company shall be conclusively presumed to be in good
faith and in the best interests of Company.
(c) For
purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the
following, in each case during the Employment Term without
Executive’s prior written consent:
(i) a
material reduction in Executive’s Base Salary (other than a
general reduction in Base Salary that affects all similarly
situated executives in substantially the same
proportions);
(ii) any
material breach by Company of any material provision of this
Agreement or any material provision of any other agreement between
Executive and Company;
(iii) a
material adverse change in Executive’s authority, duties, or
responsibilities (other than temporarily while Executive is
physically or mentally incapacitated or as required by applicable
law);
(iv) relocation
of Executive’s principal place of business by more than 50
miles.
(v) To
terminate Executive’s employment for Good Reason, Executive
must provide written notice to Company of the existence of the
circumstances providing grounds for termination for Good Reason
within thirty (30) days of the initial existence of such grounds,
and Company must have at least fifteen (15) days from the date on
which such notice is provided to cure such circumstances (the
“Cure
Period”). If Executive
does deliver a Notice of Termination of employment for Good Reason
as required by Section 4.4 within thirty (30) days after expiration
of the Cure Period, then Executive will be deemed to have waived
Executive’s right to terminate for Good Reason with respect
to such grounds.
4.2 Termination
by Company Without Cause or by Executive for Good
Reason. The Employment Term and
Executive’s employment hereunder may be terminated by
Executive for Good Reason or by Company without Cause. In the event
of such termination, Executive shall be entitled to receive the
Accrued Amounts, and, subject to Executive’s compliance with
Section 5 of this Agreement and Exhibit 1 hereto and further
subject to Executive’s timely execution and non-revocation
(if applicable) of a release of claims in favor of Company, its
affiliates, and their respective officers and directors in a form
provided by Company (the “Release”), Executive shall be entitled to receive
the following:
(a) a
lump sum payment equal to one-twelfth of Executive’s Base
Salary for every year that Executive has been employed (including,
for purposes of this section only Executive’s employment
period with NetSapiens prior to the Effective Date, in this
computation), up to a maximum of one year of Executive’s Base
Salary.
(b) If
Executive timely and properly elects health continuation coverage
under the Consolidated Omnibus Budget Reconciliation Act of 1985
(“COBRA”), Company shall reimburse Executive for
the monthly COBRA premium paid by Executive for one year following
termination and election of COBRA continuation
benefits.
(c) The
treatment of any outstanding equity awards shall be determined in
accordance with the terms of the Crexendo Inc. 2013 Long-Term
Incentive Stock Option Plan or any successor plan and the
applicable award agreements.
4.3 Death
or Disability.
(a) Executive’s
employment hereunder shall terminate automatically upon
Executive’s death during the Employment Term, and Company may
terminate Executive’s employment on account of
Executive’s Disability.
(b) If
Executive’s employment is terminated during the Employment
Term on account of Executive’s death or Disability, Executive
(or Executive’s estate and/or beneficiaries, as the case may
be) shall be entitled to receive the Accrued Amounts.
(c) Notwithstanding
any other provision contained herein, all payments made in
connection with Executive’s Disability shall be provided in a
manner which is consistent with federal and state law.
(d) For
purposes of this Agreement, “Disability” shall mean Executive’s inability,
due to physical or mental incapacity, to perform the essential
functions of Executive’s job, with or without reasonable
accommodation, for one hundred twenty (120) consecutive days. Any
question as to the existence of Executive’s Disability as to
which Executive and Company cannot agree shall be determined in
writing by a qualified independent physician mutually acceptable to
Executive and Company. The determination of Disability made in
writing to Company and Executive shall be final and conclusive for
all purposes of this Agreement.
4.4 Notice
of Termination. Any termination
of Executive’s employment hereunder by Company or by
Executive during the Employment Term (other than termination
pursuant to 14.3 on
account of Executive’s death) shall be communicated by
written notice of termination (“Notice of
Termination”) to the
other party hereto in accordance with 115. The Notice of Termination shall
specify:
(a) the
termination provision of this Agreement relied upon;
(b) to
the extent applicable, the facts and circumstances claimed to
provide a basis for termination of Executive’s employment
under the provision so indicated; and
(c) the
applicable date of termination, which shall be no less than ten
(10) days following the date on which the Notice of Termination is
delivered if Company terminates Executive’s employment
without Cause, or no less than fifteen (15) days following the date
on which the Notice of Termination is delivered if Executive
terminates Executive’s employment with or without Good
Reason.
4.5 Resignation
From Certain Other Positions.
Upon termination of Executive’s employment hereunder for any
reason, Executive shall be deemed to automatically have resigned
from all positions that Executive holds as an officer of Company or
any of its affiliates, or member of the Board (or a committee
thereof) of any of the Company’s affiliates, but not the
Board of the Company.
5. Additional
Covenants. Where permitted by
applicable state and local law, Executive shall enter into and
abide by that certain agreement attached hereto as Exhibit 1
hereto.
6. Arbitration.
Any dispute, controversy, or claim arising out of or related to
Executive’s employment by Company, or termination of
employment, including but not limited to claims arising under or
related to this Agreement or any breach of this Agreement, and any
alleged violation of federal, state, or local statute, regulation,
common law, or public policy, shall be submitted to and decided by
binding arbitration. Arbitration shall be administered exclusively
by the American Arbitration Association (“AAA”) and shall be conducted within 50 miles of
the city in which Executive principally worked for Company and
consistent with the employment arbitration rules in effect by AAA
at the time the arbitration is commenced, except as modified by
this Agreement. Except for claims seeking injunctive relief to
enforce the terms of Exhibit 1 hereto, which the Parties agree may
be brought in any state or federal court of competent jurisdiction
or in arbitration, the Parties otherwise waive the right to have
their disputes heard or decided by a jury or in a court trial and
the right to pursue any class or collective action or
representative claims against each other in court, arbitration, or
any other proceeding. Any arbitral award determination shall be
final and binding upon the parties.
7. Governing
Law. This Agreement, for all
purposes, shall be construed in accordance with the laws of the
State in which Executive principally worked for
Company.
8. Entire
Agreement. Unless specifically
provided herein, this Agreement contains all of the understandings
and representations between Executive and Company pertaining to the
subject matter hereof and supersedes all prior and contemporaneous
understandings, agreements, representations and warranties, both
written and oral, with respect to such subject
matter.
9. Modification
and Waiver. No provision of
this Agreement may be amended or modified unless such amendment or
modification is agreed to in writing and signed by Executive and
Company. No waiver by either of the parties of any breach by the
other party hereto of any condition or provision of this Agreement
to be performed by the other party hereto shall be deemed a waiver
of any similar or dissimilar provision or condition at the same or
any prior or subsequent time.
10. Severability.
Should any provisions of this Agreement be held to be invalid,
illegal, or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other
provisions hereof, and if such provision or provisions are not
modified as provided above, this Agreement shall be construed as if
such invalid, illegal, or unenforceable provisions had not been set
forth herein.
11. Captions.
Captions and headings of the sections and paragraphs of this
Agreement are intended solely for convenience and no provision of
this Agreement is to be construed by reference to the caption or
heading of any section or paragraph.
12. Counterparts.
This Agreement may be executed in separate counterparts, each of
which shall be deemed an original, but all of which taken together
shall constitute one and the same instrument.
13. Section
409A.
13.1 General
Compliance. This Agreement is
intended to comply with Section 409A of the Internal Revenue Code,
or an exemption thereunder, and shall be construed and administered
in accordance with such intent. Notwithstanding any other provision
of this Agreement, payments provided under this Agreement may only
be made upon an event and in a manner that complies with Section
409A or an applicable exemption. Any nonqualified deferred
compensation payments under this Agreement that may be excluded
from Section 409A either as separation pay due to an involuntary
separation from service or as a short-term deferral shall be
excluded from Section 409A to the maximum extent possible. Any
payments to be made under this Agreement upon a termination of
employment shall only be made upon a “separation from
service” under Section 409A. Notwithstanding the foregoing,
Company makes no representations that the payments and benefits
provided under this Agreement comply with Section 409A, and in no
event shall Company be liable for all or any portion of any taxes,
penalties, interest, or other expenses that may be incurred by
Executive on account of non-compliance with Section
409A.
13.2 Specified
Employees. Notwithstanding any
other provision of this Agreement, if any payment or benefit
provided to Executive in connection with Executive’s
termination of employment is determined to constitute
“nonqualified deferred compensation” within the meaning
of Section 409A and Executive is determined to be a
“specified employee” as defined in Section
409A(a)(2)(b)(i), then such payment or benefit shall not be paid
until the first payroll date to occur following the six-month
anniversary of the date of Executive’s termination or, if
earlier, on Executive’s death (the “Specified Employee Payment
Date”). The aggregate of
any payments that would otherwise have been paid before the
Specified Employee Payment Date and interest on such amounts
calculated based on the applicable federal rate published by the
Internal Revenue Service for the month in which Executive’s
separation from service occurs shall be paid to Executive in a lump
sum on the Specified Employee Payment Date and thereafter, any
remaining payments shall be paid without delay in accordance with
their original schedule.
13.3 Reimbursements.
To the extent required by Section 409A, each reimbursement or
in-kind benefit provided under this Agreement shall be provided in
accordance with the following:
(a) the
amount of expenses eligible for reimbursement, or in-kind benefits
provided, during each calendar year cannot affect the expenses
eligible for reimbursement, or in-kind benefits to be provided, in
any other calendar year;
(b) any
reimbursement of an eligible expense shall be paid to Executive on
or before the last day of the calendar year following the calendar
year in which the expense was incurred; and
(c) any
right to reimbursements or in-kind benefits under this Agreement
shall not be subject to liquidation or exchange for another
benefit.
14. Successors
and Assigns. This Agreement is
personal to Executive and shall not be assigned by Executive. Any
purported assignment by Executive shall be null and void from the
initial date of the purported assignment. Company may assign this
Agreement to any successor or assign (whether direct or indirect,
by purchase, merger, consolidation, or otherwise) to all or
substantially all of the business or assets of Company. This
Agreement shall inure to the benefit of Company and permitted
successors and assigns.
15. Notice.
Notices and all other communications provided for in this Agreement
shall be given in writing by personal delivery, electronic
delivery, or by registered mail to the parties at the addresses set
forth below (or such other addresses as specified by the parties by
like notice):
If
to Company:
0000
X 00xx Xx, Xxxxx, XX 00000
Attn:
Xxxxxxx X. Xxxx
If
to Executive:
To
the last known address on file with Company’s HR/payroll
departments
16. Representations
of Executive. Executive
represents and warrants to Company that Executive’s acceptance of employment with
Company and the performance of Executive’s duties hereunder
will not conflict with or result in a violation of, a breach of, or
a default under any contract, agreement, or understanding to which
Executive is a party or is otherwise bound. Executive further
represents and warrants to Company that Executive’s
acceptance of employment with Company
and the performance of Executive’s duties hereunder will not
violate any non-solicitation, non-competition, or other similar
covenant or agreement of a prior employer or third
party.
17. Withholding.
Company shall have the right to withhold from any amount payable
hereunder any federal, state, and local taxes in order for Company
to satisfy any withholding tax obligation it may have under any
applicable law or regulation.
18. Survival.
Upon the expiration or other termination of this Agreement, the
respective rights and obligations of the parties hereto shall
survive such expiration or other termination to the extent
necessary to carry out the intentions of the parties under this
Agreement.
19. Acknowledgement
of Full Understanding.
EXECUTIVE ACKNOWLEDGES AND AGREES THAT EXECUTIVE HAS FULLY READ,
UNDERSTAND AND VOLUNTARILY ENTERS INTO THIS AGREEMENT. EXECUTIVE
ACKNOWLEDGES AND AGREES THAT EXECUTIVE HAS HAD AN OPPORTUNITY TO
ASK QUESTIONS AND CONSULT WITH AN ATTORNEY OF EXECUTIVE’S
CHOICE BEFORE SIGNING THIS AGREEMENT.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
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By /s/ Xxxxxxx X. Xxxx
.
Name: Xxxxxxx X. Xxxx
Title: Secretary
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EXECUTIVE
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Signature: /s/ Xxxxx
Xxxxxx .
Print Name: Xxxxx Xxxxxx
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EXHIBIT 1 TO EMPLOYMENT AGREEMENT
Employee Confidentiality, Post-Termination Restrictions, and
Proprietary Rights Agreement
Acknowledgement.
Executive understands that the nature
of Executive’s position gives Executive access to and
knowledge of Confidential Information and places Executive in a
position of trust and confidence with Company (as such term is
defined in Executive’s Employment Agreement). Executive
understands and acknowledges that the intellectual or business
services Executive provides to Company are unique, special, or
extraordinary and Executive’s employment was material to the
parties’ decision to enter into that certain transaction
among Crexendo, Inc., Crexendo Merger Sub. Inc., Crexendo Merger
Sub, LLC and Netsapiens, Inc. (“Merger
Agreement”).
Executive
further understands and acknowledges that Company’s
employment of Executive and entrustment of Executive with
Confidential Information is of great competitive importance and
commercial value to Company, and that improper use or disclosure of
Company’s Confidential Information by Executive will result
in unfair or unlawful competitive activity and irreparable harm to
Company.
1.
Non-Competition. Because of Company’s legitimate business
interest as described herein and the good and valuable
consideration included in the Merger Agreement and employment
offered to Executive, during the Employment Term and for a period
of one year after the last day of Executive’s employment with
Company (or two years after the last day of Executive’s
employment with Company if Executive’s employment ends
because Executive has breached a fiduciary duty owed to Company or
unlawfully taken Company’s physical or electronic property),
Executive agrees and covenants not to engage in Prohibited Activity
within 50 miles of any location at
which Employee has provided services on behalf of Company or
maintained a material presence or influence on behalf of Company
within the final two (2) years of Executive’s employment.
This Section 1 shall not apply in the event that Company terminates
Executive’s employment without Cause, as defined in the
Employment Agreement.
1.1
“Prohibited
Activity” is activity in
which Executive contributes Executive’s knowledge, directly
or indirectly, in whole or in part, as an employee, employer,
owner, operator, manager, advisor, consultant, agent, partner,
director, stockholder, officer, volunteer, intern, or any other
similar capacity to a person or entity engaged in the same or
similar business as the Company, which is defined for this
Agreement as the development, sale, and maintenance of cloud-based
telecommunications systems and related services. Prohibited
Activity also includes activity that may require or inevitably
requires disclosure of trade secrets, proprietary information, or
Confidential Information.
1.2
Nothing herein shall prohibit Executive from purchasing or owning
less than five percent (5%) of the publicly traded securities of
any corporation, provided that such ownership represents a passive
investment and that Executive is not a controlling person of, or a
member of a group that controls, such
corporation.
1.3 For the duration of
the covenant not to compete set forth in this Paragraph 1, Company
shall pay Executive an amount equal to fifty per cent (50%) of
Executive’s Base Salary (as defined in the Agreement),
provided that Executive is in full compliance with the terms
hereof.
2.
Non-Solicitation of Employees. Executive
agrees and covenants not to directly or indirectly solicit, hire,
recruit, attempt to hire or recruit, or induce the termination of
employment of any employee of Company or attempt to do so for two
years beginning on the last day of Executive’s employment
with the Company; provided, however, that the Executive will not be
prohibited from using general employment advertisements that are
not targeted to the Company’s employees or from hiring any
Company employees that respond to such advertisements or that were
terminated by the Company or terminated their employment with the
Company at least three (3) months prior to Executive’s
solicitation or attempted
solicitation.
3.
Non-Solicitation of
Customers. Executive
understands and acknowledges that because of Executive’s
experience with and relationship to Company and having served as
the representation of Company’s goodwill and one of the
primary points of contact with Company’s customers, Executive
has had access to and learned confidential information about and
had specialized access to Company’s customers and Customer
Information. "Customer Information" includes, but is not limited
to, names, phone numbers, addresses, email addresses, order
history, order preferences, chain of command, decision-makers,
pricing information, and other information identifying facts and
circumstances specific to the customer and relevant to
sales/services.
3.1 Executive
understands and acknowledges that loss or diminishment of this
customer relationship and/or goodwill will cause Company
significant and irreparable harm. Therefore, Executive agrees and
covenants for the two-year period beginning on the last day of
Executive’s employment with the Company not to directly or
indirectly solicit, contact (including but not limited to email,
regular mail, express mail, telephone, fax, instant message, or
social media), attempt to contact, or meet with Company’s
current or active prospective customers for purposes of offering or
accepting goods or services similar to or competitive with those
offered by the Company. This restriction shall only apply
to:
(a) Customers or prospective customers with whom or
which Executive had material contact during the last twelve (12)
months of Executive’s employment; and
(b) Customers about whom Executive has trade secret or
confidential information.
4.
Non-Disparagement.
Executive agrees and covenants that Executive will not at any time
make, publish, or communicate to any person or entity or in any
public forum any defamatory or disparaging remarks, comments, or
statements concerning Company or its businesses, employees, or
officers. The Company agrees
and covenants that it will not at any time make, publish, or
communicate to any person or entity or in any public forum any
defamatory or disparaging remarks, comments, or statements
concerning the Executive.
4.1 This Section 4 does not, in any way, restrict or
impede either party from exercising protected rights to the extent
that such rights cannot be waived by agreement or from complying
with any applicable law or regulation or a valid order of a court
of competent jurisdiction or an authorized government agency,
provided that such compliance does not exceed that required by the
law, regulation, or order. This Section 4 shall also not in any way
restrict or impede either party from making truthful statements,
statements required or privileged under applicable law or
proceeding, or statements made in connection with any action, suit
or other proceeding to enforce or defend its rights and obligations
under this Agreement or any agreement referenced
herein.
5.
Work Product. Executive acknowledges and agrees that all
right, title, and interest in and to all writings, works of
authorship, technology, inventions, discoveries, processes,
techniques, methods, ideas, concepts, research, proposals,
materials, and all other work product of any nature whatsoever,
that are created, prepared, produced, authored, edited, amended,
conceived, or reduced to practice by Executive individually or
jointly with others during the Employment Term or during
Executive’s employment with Netsapiens and relate in any way
to the Business or contemplated Business, products, activities,
research, or development of Company or result from any work
performed by Executive for Company (in each case, regardless of
when or where prepared or whose equipment or other resources is
used in preparing the same), all rights and claims related to the
foregoing, and all printed, physical and electronic copies, and
other tangible embodiments thereof (collectively,
“Work
Product”), as well as any
and all rights in and to US and foreign (a) patents, patent
disclosures and inventions (whether patentable or not), (b)
trademarks, service marks, trade dress, trade names, logos,
corporate names, and domain names, and other similar designations
of source or origin, together with the goodwill symbolized by any
of the foregoing, (c) copyrights and copyrightable works (including
computer programs), mask works, and rights in data and databases,
(d) trade secrets, know-how, and other confidential information,
and (e) all other intellectual property rights, in each case
whether registered or unregistered and including all registrations
and applications for, and renewals and extensions of, such rights,
all improvements thereto and all similar or equivalent rights or
forms of protection in any part of the world (collectively,
“Intellectual Property
Rights”), shall be the
sole and exclusive property of
Company.
5.1 Work Product includes, but is not
limited to, Company information, including plans, publications,
research, strategies, techniques, documents, know-how, computer
programs, computer applications, software design, web design, work
in process, databases, manuals, results, developments, reports,
graphics, drawings, sketches, market studies, formulae, notes
communications, algorithms, product plans, product designs, styles,
inventions, unpublished patent applications, original works of
authorship, discoveries, experimental processes, experimental
results, specifications, customer information, client information,
customer lists, client lists, manufacturing information, marketing
information, advertising information, and sales information (all of
the foregoing, “Confidential
Information”).
6.
Work Made for Hire;
Assignment. The Executive
acknowledges that, by reason of being employed by Company at the
relevant times, to the extent permitted by law, all of the Work
Product consisting of copyrightable subject matter is "work made
for hire" as defined in 17 U.S.C. § 101 and such copyrights
are therefore owned by Company. To the extent that the foregoing
does not apply, Executive hereby irrevocably assigns to Company,
for no additional consideration, Executive’s entire right,
title, and interest in and to all Work Product and Intellectual
Property Rights therein, including the right to xxx, counterclaim,
and recover for all past, present, and future infringement,
misappropriation, or dilution thereof, and all rights corresponding
thereto throughout the world. Nothing contained in this Agreement
shall be construed to reduce or limit Company’s rights,
title, or interest in any Work Product or Intellectual Property
Rights so as to be less in any respect than that which Company
would have had in the absence of this
Agreement.
7.
Acknowledgements.
Executive acknowledges and agrees that the services to be rendered
by Executive to Company are of a special and unique character; that
Executive has obtained and will obtain knowledge and skill relevant
to Company’s industry, methods of doing business and
marketing strategies by virtue of Executive’s employment; and
that the restrictive covenants and other terms and conditions of
this Agreement are reasonable and reasonably necessary to protect
the legitimate business interest of Company.
Executive
acknowledges that Company has presented this Exhibit 1 to Executive
coincident with a formal offer of employment and at least ten (10)
business days before employment is intended to begin. Company
hereby recommends that Executive consult with an attorney of
Executive’s choosing before signing this agreement, and
Executive acknowledges that Executive either has done so or
knowingly and intentionally waived the right to do
so.
Executive
further acknowledges that the benefits provided to Executive under
the Employment Agreement and as a consequence of the Merger
Agreement, including the amount of Executive’s compensation,
reflects, in part, and fairly compensates Executive for
Executive’s obligations and the Company’s rights
hereunder; that Executive has no expectation of any additional
compensation, royalties, or other payment of any kind not otherwise
referenced herein in connection herewith; and that Executive will
not suffer undue hardship by reason of full compliance with the
terms and conditions of this Exhibit 1 to the Employment Agreement
or the Company’s enforcement
thereof.
[Signature Page Follows]
By /s/ Xxxxxxx X.
Xxxx .
Name: Xxxxxxx X. Xxxx
Title: Secretary
EXECUTIVE
Signature: /s/ Xxxxx
Xxxxxx .
Print Name: Xxxxx Xxxxxx
