EXHIBIT 10.62
EMPLOYMENT AGREEMENT
This AGREEMENT (the "Agreement") is made as of January 1, 2004
(the "Effective Date"), by and between Nextera Enterprises, Inc., a Delaware
corporation (the "Company"), and Xxxxxxx X. Xxxxx (the "Employee"). In
consideration of the mutual covenants contained in this Agreement, the Company
and the Employee agree as follows:
1. Employment. Commencing on the Effective Date, the Company
agrees to employ the Employee and the Employee agrees to be employed by the
Company on the terms and conditions set forth in this Agreement.
2. Capacity. During the Term (as hereinafter defined), the
Employee shall serve the Company as its Chief Accounting Officer and Corporate
Controller. In such capacity, the Employee shall perform such services and
duties in connection with the business, affairs and operations of the Company
consistent with the Employee's status as Chief Accounting Officer and Corporate
Controller as may be assigned or delegated to the Employee from time to time by
or under the direction and supervision of the Chairman and President or the
officers of the Company as designated by the Board of Directors.
3. Term. Subject to the provisions of Section 6, the term of
employment under this Agreement (the "Term") shall be for twelve 12 months from
the Effective Date (the "Initial Term") and shall automatically renew for
periods of one (1) year commencing at the expiration of the Initial Term (the
"End Date") and on each subsequent anniversary of the End Date thereafter,
unless either the Employee or the Company gives written notice to the other not
less than thirty (30) days prior to the End Date or anniversary thereof, as
applicable, of such party's election not to extend the Term.
4. Compensation and Benefits. The regular compensation and
benefits payable to the Employee under this Agreement shall be as follows:
(a) Salary. During the Term, for all services rendered by
the Employee under this Agreement, the Company shall pay or
cause to be paid to the Employee a base salary (the "Salary")
at an annual rate of One hundred and fifty-seven thousand five
hundred dollars ($157,500).
(b) Bonus. The Employee will be eligible for a
discretionary bonus upon approval of the Board of Directors
upon the recommendation of the Chairman and President.
(c) Vacation. The Employee's vacation entitlement shall
be in accordance with the Company's vacation policy in
existence from time to time.
(d) Taxation of Payments and Benefits. The Company shall
undertake to make deductions, withholdings and tax reports
with respect to payments and Benefits under this Agreement to
the extent that it reasonably and in good faith believes that
it is required to make such deductions, withholdings and tax
reports. Payments under this Agreement shall be in amounts net
of any such deductions or withholdings. Nothing in this
Agreement shall be construed to require the
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Company to make any payments to compensate the Employee for
any adverse tax effect associated with any payments or
benefits or for any deduction or withholding from any payment
or benefit.
(e) Exclusivity of Salary and Benefits. The Employee
shall not be entitled to any payments or benefits other than those provided
under this Agreement (other than customary business expense reimbursements
submitted and approved in accordance with Company policy).
5. Extent of Service. During the Employee's employment under
this Agreement, the Employee shall, subject to the direction and supervision of
the Chairman and President and Officers designated by the Board of Directors,
devote substantially all of the Employee's business time, and use the Employee's
best efforts and business judgment, skill and knowledge to the advancement of
the Company's interests and to the discharge of the Employee's duties and
responsibilities under this Agreement. The Employee shall not engage in any
other business activity; provided that nothing in this Agreement shall be
construed as preventing the Employee from:
(a) investing the Employee's assets in any company or
other entity in a manner not prohibited by the Non-Compete, Non-Solicitation,
Proprietary Information, Confidentiality and Inventions Agreement (the
"Non-compete Agreement") referred to in section 7(a) and in such form or manner
as shall not require any material activities on the Employee's part in
connection with the operations or affairs of the companies or other entities in
which such investments are made; or
(b) engaging in religious, charitable or other community
or non-profit activities that do not materially impair the Employee's ability to
fulfill the Employee's duties and responsibilities under this Agreement.
6. Termination and Termination Benefits. Notwithstanding
the provisions of Section 3, the Employee's employment under this Agreement
shall terminate under the following circumstances set forth in this Section 6.
(a) Termination by the Company for Cause. The Employee's
employment under this Agreement may be terminated for Cause without further
liability on the part of the Company effective immediately upon written notice
to the Employee. Only the following shall constitute "Cause" for such
termination:
(i) material dishonest statements or acts of the
Employee with respect to the Company or any affiliate of the
Company;
(ii) commission by the Employee of, or entry by
the Employee of a guilty or no contest plea to, (x) a felony
or (y) any misdemeanor involving moral turpitude, deceit,
dishonesty or fraud; or
(iii) A willful violation by Employee of a federal
or state law, rule or regulation applicable to the business of
the Company of a type and kind that is materially adverse to
the Company; or
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(iv) willful and material breach of this
Agreement or the Non-Compete Agreement by the Employee,
consistent unsatisfactory performance, gross negligence,
habitual neglect of duties, willful misconduct or willful
failure or refusal of the Employee to comply with explicit
directions of the Chairman and President or Officers
designated by the Board of Directors, which directions are
consistent with Section 2 of this Agreement, in each instance
after fifteen (15) days written notice and an opportunity to
cure.
In making any determination under this Section 6(a), the Board shall act fairly
and in good faith and shall give the Employee an opportunity to appear and be
heard at a meeting with the Chairman and President and other Company management,
which meeting may be held telephonically at the request of either the Company or
the Employee, and present evidence on the Employee's behalf.
(b) Termination by the Employee. The Employee's
employment under this Agreement may be terminated by the Employee by written
notice to the Company at least thirty (30) days prior to such termination.
(c) Termination by the Company Without Cause or by the
Employee with Good Reason. Subject to the payment of Termination Benefits
pursuant to Section 6(d), the Employee's employment under this Agreement may be
terminated by the Company without Cause upon written notice to the Employee by
the Chairman and President or Officers designated by the Board of Directors or
by the Employee with Good Reason upon written notice to the Board. For purposes
of this Agreement, "Good Reason" shall mean, without the Employee's written
consent, the occurrence of any of the following circumstances:
(i) the assignment to the Employee of any duties
substantially inconsistent with and inferior to the position
of Chief Accounting Officer and Corporate Controller of the
Company or a significant adverse alteration in the nature or
status of the Employee's responsibilities or the conditions of
the Employee's employment as Chief Accounting Officer and
Corporate Controller;
(ii) the Company's reduction of the Employee's
Salary as in effect on the Effective Date or as the same may
be increased from time to time except for across-the-board
salary reductions similarly affecting all management personnel
of the Company;
(iii) except with respect to an across-the-board
benefit plan reduction or elimination similarly affecting all
management personnel of the Company, the Company's failure to
continue in effect any material compensation or benefit plan
in which the Employee participates, unless an equitable
arrangement (embodied in an ongoing substitute or alternative
plan) has been made with respect to such plan, or the
Company's failure to continue the Employee's participation
therein (or in such substitute or alternative plan) on a basis
not materially less favorable, both in terms of the amount of
benefits provided and the level of the Employee's
participation relative to other participants; or
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(iv) the Company-required relocation of the
Employee's residence; provided; however, Employee acknowledges
that he may be required to spend a substantial amount of time
traveling on Company business. The Company shall pay for all
of Employee's reasonable travel and living expenses associated
with such travel from the Boston metropolitan area;
(v) the Company's failure to pay to the Employee
any portion of the Employee's current compensation or to pay
to the Employee any portion of an installment or deferred
compensation under any deferred compensation program of the
Company within seven (7) days of the date such compensation is
due;
(vi) except with respect to an across-the-board
benefit plan reduction or elimination similarly affecting all
management personnel of the Company, the Company's failure to
continue to provide the Employee with benefits substantially
similar to those currently enjoyed by the Employee under any
of the Company's life insurance, medical, health and accident,
or disability plans in which the Employee participates, the
taking of any action by the Company which would directly or
indirectly materially reduce any of such benefits, or the
failure by the Company to provide the Employee with the number
of paid vacation days to which the Employee is entitled on the
basis of years of service with the Company in accordance with
the Company's normal vacation policy; or
(vii) in the event the Company engages in a merger
or other business combination or a sale of all or
substantially all of its assets, the failure of any successor
to the Company to expressly assume the obligations of the
Company under this Agreement.
(d) Certain Termination Benefits. Unless otherwise
specifically provided in this Agreement or otherwise required by law, all
compensation and benefits payable to the Employee under this Agreement shall
terminate on the date of termination of the Employee's employment under this
Agreement. Notwithstanding the foregoing, in the event of termination of the
Employee's employment with the Company pursuant to Section 6(c) or the Company's
failure to renew this Agreement as contemplated by Section 6(g), subject to the
Employee's continuing compliance with his obligations under the Non-Compete
Agreement (other than those under the Section entitled
"Non-Compete/Exclusivity") the Company shall provide to the Employee the
following termination benefits ("Termination Benefits"):
(i) continuation of the Employee's Salary at the
rate then in effect pursuant to Section 4(a);
(ii) a bonus of twenty-five percent (25%) of the
base salary earned in the calender year of the termination.
(iii) continuation of all Benefits to the extent
authorized by and consistent with 29 U.S.C. Section 1161 et
seq. (commonly known as "COBRA"), with the cost of the regular
premium for such Benefits shared in the same relative
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proportion by the Company and the Employee as in effect on the
date of termination;
(iv) the Termination Benefits set forth in (i),
(ii), and (iii) above shall continue effective until six
months from the date of the termination of the Employee's
employment, and will include such payments for accrued
vacation pay and any similar items required by law.
Notwithstanding the foregoing, nothing in this Section 6(d)
shall be construed to affect the Employee's right to receive
COBRA continuation entirely at the Employee's own cost to the
extent that the Employee may continue to be entitled to COBRA
continuation after the Employee's right to cost sharing under
Section 6(d)(iii) ceases;
(v) Any options exercisable for Class A Common
Stock granted to the Employee which are not vested at that
time shall be deemed to have vested to the extent of fifty
percent (50%) of such remaining unvested portion;
(vi) Employee will be released from the
restrictions and covenants contained within the section
entitled "Non-Compete/Exclusivity" under the Non-Compete
Agreement executed by Employee, and upon termination of the
payment of the Termination Benefits set forth in (i), (ii),
and (iii) above, Employee will be released from the
restrictions and covenants contained within the section
entitled "Non-Solicitation" under the Non-Compete Agreement
executed by Employee; provided, however, that at Employee's
option upon prior written notice to the Company, Employee
shall be released from the restrictions and covenants
contained within the section entitled "Non-Solicitation" under
the Non-Compete Agreement executed by Employee, and the
Company shall have no further liability or obligation for the
payment of any remaining Termination Benefits under Sections
6(d)(i), 6(d)(ii) and 6(d)(iii) from and after the date of
such notice, which Termination Benefits shall be forfeited by
Employee; and
(vii) In addition to the foregoing, in the event
of the termination of the Employee's employment with the
Company for any reason, the Employee shall be entitled to
payment of any accrued and unpaid Benefits for which the
Employee may otherwise be vested or entitled in accordance
with the terms of the applicable plans governing such Benefits
and to payment for reimbursable expenses under applicable
Company policy within thirty (30) days of termination.
(e) Disability. At the election of the Company, this
Agreement shall terminate on such date as may be selected by the Company after
the Employee shall have failed to render and perform the services required of
him under this Agreement during any period of 90 days within any 120 day period
during the Term because of physical or mental disability. In the event of such
termination, the Company shall have no further obligation for the payment of
compensation or benefits hereunder, except (i) for compensation accrued and
unpaid through the termination date and (ii) the payment of any disability
insurance to which the Employee may be entitled. If there should be any dispute
between the parties as to the Employee's physical or mental incapacity or
disability pursuant to this Section 6(e), such question shall be settled by the
opinion of an approved medical doctor. For this purpose an approved medical
doctor shall mean
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a medical doctor selected by the Company and the Employee. If the parties cannot
agree on a medical doctor, each party shall select a medical doctor and the two
doctors shall select a third who shall be the approved medical doctor for this
purpose. The opinion of such medical doctor as to the matter in dispute shall be
final and binding on the parties.
(f) Death. In the event of termination as a result of the
Employee's death, the Company shall have no further obligation to the Employee's
representatives and heirs hereunder.
(g) Failure to Renew Agreement. In the event the Company
elects not to extend the term of this Agreement as permitted by Section 3 and
the Employee's employment is terminated, the Employee shall be entitled to the
Termination Benefits described in Section 6(d). In the event that the Employee
elects not to extend the Term of this Agreement as provided in Section 3 and the
Employee's employment is terminated, the Employee shall be entitled to the
termination benefits described in Section 6(d)(vi).
7. Non-Compete, Non-Solicitation, Proprietary Information,
Confidentiality and Inventions Agreements.
(a) The Employee agrees to sign the Non-Compete,
Non-Solicitation, Proprietary Information, Confidentiality and Inventions
Agreement, the form of which is attached hereto as Exhibit "A" and, except as
set forth in Section 6(d)(vi), to comply with such Agreement during the Term.
(b) Litigation and Regulatory Cooperation. During the
Employee's employment, the Employee shall cooperate fully with the Company in
the defense or prosecution of any claims or actions now in existence or which
may be brought in the future against or on behalf of the Company which relate to
events or occurrences that transpired while the Employee was employed by the
Company; provided, however, that the Employee shall be permitted to give
testimony and appear as a witness in any proceeding in which such testimony or
appearance is required by law. The Employee's full cooperation in connection
with such claims or actions shall include, but not be limited to, being
available to meet with counsel to prepare for discovery or trial and to act as a
witness on behalf of the Company at mutually convenient times. During the
Employee's employment, the Employee also shall cooperate fully with the Company
in connection with any investigation or review of any federal, state or local
regulatory authority as any such investigation or review relates to events or
occurrences that transpired while the Employee was employed by the Company. The
Employee also agrees to provide reasonable cooperation to the Company on matters
of the type described in this Section 7(a) after termination of the Employee's
employment. The Company shall reimburse the Employee for any reasonable
out-of-pocket expenses incurred in connection with the Employee's performance of
obligations pursuant to this Section 7(b).
(b) Remedies. The Employee agrees that it would be
difficult to measure any damages caused to the Company which might result from
any breach by the Employee of the promises set forth in this Section 7, and that
in any event money damages would be an inadequate remedy for any such breach.
Accordingly, the Employee agrees that if the Employee breaches, or proposes to
breach, any portion of this Section 7, the Company shall be entitled, in
addition to all other remedies that it may have, to an injunction or other
appropriate equitable
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relief to restrain any such breach without showing or proving any actual damage
to the Company.
8. General.
(a) Arbitration of Disputes. Any controversy or claim
arising out of or relating to this Agreement or the breach thereof or otherwise
arising out of the Employee's employment or the termination of that employment
(including, without limitation, any claims of unlawful employment discrimination
whether based on age or otherwise) shall, to the fullest extent permitted by
law, be settled by arbitration in any forum and form agreed upon by the parties
or, in the absence of such an agreement, under the auspices of the American
Arbitration Association ("AAA") in Boston, Massachusetts, the Employment Dispute
Resolution Rules of the AAA, including, but not limited to, the rules and
procedures applicable to the selection of arbitrators, except that the
arbitrator shall apply the law as established by decisions of the U.S. Supreme
Court and the federal and state courts sitting in Massachusetts in deciding the
merits of claims and defenses under federal law or any state or federal
anti-discrimination law, and any awards to the Employee for violation of any
anti-discrimination law shall not exceed the maximum award to which the Employee
could be entitled under the applicable (or most analogous) anti-discrimination
or civil rights laws. In the event that any person or entity other than the
Employee or the Company may be a party with regard to any such controversy or
claim, such controversy or claim shall be submitted to arbitration subject to
such other person or entity's agreement. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. The
arbitrator shall have the authority to grant the prevailing party reasonable
costs and expenses, including reasonable attorney's fees and the costs of the
arbitration. This Section 8(a) shall be specifically enforceable.
Notwithstanding the foregoing, this Section 8(a) shall not preclude either party
from pursuing a court action for the sole purpose of obtaining a temporary
restraining order or a preliminary injunction in circumstances in which such
relief is appropriate; provided that any other relief shall be pursued through
an arbitration proceeding pursuant to this Section 8(a).
(b) Integration. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior understandings and agreements between the parties, whether
oral or written, with respect to any related subject matter.
(c) Assignment: Successors and Assigns, etc. Neither the
Company nor the Employee may make any assignment of this Agreement or any
interest herein, by operation of law or otherwise, without the prior written
consent of the other party; provided that the Company may assign its rights
under this Agreement without the consent of the Employee in the event that the
Company shall effect a reorganization, consolidate with or merge into any other
corporation, partnership, organization or other entity, or transfer all or
substantially all of its properties or assets to any other corporation,
partnership, organization or other entity; provided such successor is the
functional equivalent of the Company. This Agreement shall inure to the benefit
of and be binding upon the Company and the Employee, their respective
successors, executors, administrators, heirs and permitted assigns.
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(d) Enforceability. If any portion or provision of this
Agreement (including, without limitation, any portion or provision of any
section of this Agreement) shall to any extent be declared illegal or
unenforceable by a court of competent jurisdiction, then that court shall have
the power to alter such provision to make it enforceable to the fullest extent
permitted by law. The remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
(e) Waiver. No waiver of any provision hereof shall be
effective unless made in writing and signed by the waiving party. The failure of
any party to require the performance of any term or obligation of this
Agreement, or the waiver by any party of any breach of this Agreement, shall not
prevent any subsequent enforcement of such term or obligation or be deemed a
waiver of any subsequent breach.
(f) Notices. Any notices, requests, demands and other
communications provided for by this Agreement shall be sufficient if in writing
and delivered in person or sent by a nationally recognized overnight courier
service or by registered or certified mail, postage prepaid, return receipt
requested, to the Employee at the last address the Employee has filed in writing
with the Company or, in the case of the Company, at its main offices, attention
of the Chairman and President, and shall be effective on the date of delivery in
person or by courier or three (3) days after the date mailed.
(g) Amendment. This Agreement may be amended or modified
only by a written instrument signed by the Employee and by a duly authorized
representative of the Company.
(h) Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
taken to be an original; but such counterparts shall together constitute one and
the same document.
9. Consent to Jurisdiction.
(a) Governing Law. This contract shall be construed under
and be governed in all respects by the laws of the State of Massachusetts
without giving effect to the conflict of laws principles of such state.
(b) Consent to Jurisdiction. To the extent that any court
action is permitted consistent with or to enforce Section 8(a) of this
Agreement, the parties hereby consent to the jurisdiction of the state and
federal courts in Boston, Massachusetts. Accordingly, with respect to any such
court action, each of the Employee and the Company (a) submits to the personal
jurisdiction of such courts; (b) consents to service of process; and (c) waives
any other requirement (whether imposed by statute, rule of court, or otherwise)
with respect to personal jurisdiction or service of process.
Termination of Prior Employment Agreements. All prior employment agreements
between the Employee and the Company or any of its subsidiaries or affiliates by
and between the Employee and Nextera Enterprises, Inc., and all amendments and
renewals thereof, are superseded by this
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Agreement and are terminated and are null and void, except that the Employee
shall be entitled to any accrued and unpaid salary, bonus or benefits under his
prior employment agreement through the Effective Date.
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11. INTENDING TO BE LEGALLY BOUND by this Agreement and
IN WITNESS THEREOF, the undersigned parties have executed this Agreement as of
this 3rd day of March, 2004.
NEXTERA ENTERPRISES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Its: President and Chief Financial Officer
Xxxxxxx X. Xxxxx
State of Residence: Massachusetts
/s/ Xxxxxxx X. Xxxxx
------------------------------------
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EXHIBIT A
NONCOMPETE, NON-SOLICITATION, PROPRIETARY INFORMATION,
CONFIDENTIALITY AND INVENTIONS AGREEMENT
This Agreement is made as of January 1, 2004, by and between
Nextera Enterprises Inc., a Delaware corporation, and the undersigned Employee.
Employee and Nextera have also entered into an Employment Agreement of even date
herewith (the "Employment Agreement"). In consideration of the employment and
continued employment of Employee by Nextera Enterprises, Inc., its successors,
subsidiaries and affiliates (collectively, "Nextera"), the Employee agrees to
certain restrictions on activities necessary to avoid conflicts of interest,
ensure the exclusivity of Employee's services and protect the goodwill,
confidential information, and legitimate business interests of Nextera and its
clients. To further these objectives, the Employee agrees to comply with the
following provisions of this Agreement ("Agreement") as follows:
NONCOMPETE/EXCLUSIVITY
During the period of employment by Nextera:
1. the Employee will devote substantially all of the Employee's
business time to the business of Nextera in accordance with
Section 6 of the Employee's Employment Agreement with Nextera
of even date herewith;
2. will not engage in any business activity, current or proposed,
which competes with the services or products being developed,
marketed or sold by Nextera; and
3. will not, without prior written consent of Nextera, invest in,
enter into or assist any venture, enterprise, or endeavor
which competes or intends to compete with Nextera, other than
as a less than five percent (5%) stockholder of a publicly
held company or a stockholder of a publicly held company which
derives none or an immaterial portion (i.e., less than ten
percent (10%)) of its revenues from services which compete
with the services of Nextera.
The Employee represents that, to the best of the Employee's knowledge,
employment by Nextera will not conflict with any agreement to which the Employee
is subject.
NON-SOLICITATION
1. The Employee acknowledges that the names and details of the
firms with whom the Employee's has dealings while employed by
Nextera constitute trade secrets belonging to Nextera. In
order to preserve Nextera's trade secrets, during employment
with Nextera and for a period of two (2) years after
termination of the Employee's employment with Nextera for any
reason, which two (2) year period or restrictions shall be
reduced or eliminated as provided in the Employment Agreement
in the event that Nextera terminates Employee's employment
without Cause (as defined in the Employment Agreement) or
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Employee terminates his employment for Good Reason (as defined
in the Employment Agreement):
(a) the Employee will not solicit or cause to be
solicited, or aid in the solicitation of business
from firms for which the Employee did work or from
whom the Employee actively solicited business during
the Employee's employment with Nextera or any of its
subsidiaries or affiliates; and
(b) the Employee will not directly or indirectly contact
or solicit any employee of Nextera with regard to
present, future or contemplated employment
opportunities on behalf of himself, or any other
person, firm, corporation, governmental agency or
other entity.
PROPRIETARY INFORMATION
1. Proprietary Information refers to any information, not
generally known in the relevant trade or industry, which was
obtained from Nextera or any of its clients, past, present, or
prospective, other than information that is or becomes known
to the public or trade through no breach of this Agreement by
the Employee.
2. Proprietary Information includes, but is not limited to, the
following items, whether or not labeled as such: customer
lists, notes, drawings and writings; computer programs
(including source and object codes), algorithms, systems,
tools, spreadsheets, related documentation such as user
manuals, functional and technical specifications, system
descriptions, program documentation, output reports, terminal
displays, and data file contents; plans, process and
preparations for Nextera's current and proposed business
activities; discoveries, inventions, developments, ideas,
research, engineering, designs, and products; projects and
improvements made or conceived in connection with Nextera's
customer and prospective customer's lists; and marketing and
financial data of Nextera and its clients.
3. The Employee agrees not to disclose the existence of or
contents of any documents, records, discs, tapes, and other
media that contain Proprietary Information, and will not copy
or remove any such material from Nextera or its client's
premises, except as required by the Employee's duties or as
approved by an authorized officer of Nextera.
4. The Employee agrees to comply with all restrictions and
regulations of Nextera's clients concerning any and all
information such clients deem proprietary or confidential.
5. The Employee agrees that any material relating to any matter
within the scope of the business of Nextera, and any materials
of clients of Nextera, is and shall remain the property of
Nextera or such clients, as the case may be, and that upon
termination of employment or at any earlier time as requested
by Nextera, the
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Employee will immediately deliver such material and all copies
in Employee's possession or control to Nextera or such
clients, as the case may be.
6. Nextera may provide the Employee with equipment (portable
personal computer, software, etc.) for Employee's use in the
course of employment by Nextera. The Employee acknowledges
that any such equipment will remain the exclusive property of
Nextera, and the Employee agrees to deliver such equipment to
Nextera, as directed by Nextera, upon termination of
employment for any reason, or at any time upon request of
Nextera.
CONFIDENTIALITY
1. Except in connection with the Employee's duties for Nextera,
the Employee will not use or disclose to anyone outside
Nextera, and will not use any Proprietary Information or
material relating to the business of Nextera, or its clients,
either during or after employment by Nextera, except with the
written permission of Nextera.
2. The Employee will not disclose to Nextera, and will not induce
Nextera to use any confidential information or material
belonging to others where such disclosure would, to the
Employee's knowledge, violate any rights of, or any duty owing
to, a third party.
3. The Employee agrees not to discuss any information or respond
to any inquiries from the press or other information agencies
regarding Nextera without the express permission of Nextera,
other than responding in the ordinary course of business to
inquiries regarding the consulting industry generally or work
done for clients of Nextera.
4. The Employee shall be permitted to give testimony and appear
as a witness in any proceeding in which such testimony or
appearance is required by law, provided the Employee
reasonably furnishes notice to Nextera in order to enable
Nextera to seek a protective order, if applicable.
INVENTIONS
1. The Employee agrees to disclose promptly and fully to Nextera
all developments, inventions, discoveries, improvements, and
proposals for new programs, systems, services, products,
tools, or business endeavors which are related to any business
activity by Nextera, current or proposed (collectively called
"Developments").
2. The Employee hereby assigns to Nextera the Employee's entire
right, title, and interest in each and every work product or
Development related to any business activity by Nextera,
current or proposed (collectively called "Work Product"):
(a) made, developed or conceived solely by the Employee
or jointly with others during or in the course of the
Employee's employment by Nextera,
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(b) made, developed or conceived wholly or partially as
the result of any task assigned to the Employee or
any work performed by the Employee for or on behalf
of Nextera or its clients, and/or
(c) made or developed with the use of Nextera facilities
or equipment.
3. The Employee agrees to grant to Nextera a right of first
refusal to market on a mutually agreed royalty basis, and a
perpetual non-exclusive license to use, each and every Work
Product or Development made, developed or conceived by the
Employee during employment by Nextera which is not covered
under the preceding paragraph.
4. During employment with Nextera, the Employee agrees to provide
Nextera with copies of any manuscripts produced by the
Employee relating to the business of Nextera or which refers
to Nextera in any manner for approval by Nextera prior to
submission for publication.
5. The Employee does not, however, assign any Developments, if
any, relating in any way to Nextera business which were made
prior to employment with Nextera, which Developments, if any,
are identified on Exhibit A, attached to this Agreement.
GENERAL
1. The Employee's obligations under this Agreement shall survive
the termination of employment. The Employee understands that
this Agreement does not create an obligation of Nextera or any
other party to continue employment.
2. Nextera shall have the unrestricted right to assign this
Agreement to its parent company, its affiliates, and any and
all successors in interest.
3. It is agreed that Nextera may inform any person or entity
subsequently employing or evidencing an intention to employ,
Employee of the nature of the information Nextera asserts to
be confidential, and may inform said person or entity of the
existence of this Agreement, and provide to such persons or
entity a copy of this Agreement.
4. Any breach of this Agreement by the Employee may cause
irreparable damage, and in the event of such a breach, Nextera
shall have, in addition to any remedies at law, the right to
an injunction to prevent or restrain a breach of the
Employee's obligations hereunder.
5. Nextera's failure to exercise any rights under this Agreement
does not constitute a waiver of such right in the event of a
subsequent violation of this Agreement.
6. This Agreement shall be governed by the laws of the state of
Employee's employment.
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7. In the event a court of competent jurisdiction shall determine
that any provision in this Agreement is too restrictive in
scope or duration, then that court shall have the power to
alter such provision to make it enforceable to the fullest
extent permitted by law. Such a determination shall not have
the effect of rendering any other provision herein contained
invalid.
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INTENDING TO BE LEGALLY BOUND by this Agreement and IN WITNESS THEREOF,
the undersigned parties have executed this Agreement as of this 3rd day March ,
2004.
NEXTERA ENTERPRISES, INC.
By: _____________________________
Its: ____________________________
XXXXXXX X. XXXXX
State of Residence: Massachusetts
_________________________________
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