SECOND RESTATED, AMENDED AND SUPPLEMENTAL EMPLOYMENT AGREEMENT
SECOND
RESTATED, AMENDED AND SUPPLEMENTAL EMPLOYMENT
AGREEMENT
THIS SECOND RESTATED, AMENDED AND SUPPLEMENTAL
EMPLOYMENT AGREEMENT (the “2018 Agreement”)
dated March 29, 2018 by and between Novume Solutions, Inc., a
Delaware corporation (the “Company”), and Xxxx
Xxxxxxxxxx (the “Executive”).
WITNESSETH:
WHEREAS, KeyStone
Solutions, Inc. (“KeyStone Solutions”) and Executive
entered into an employment agreement dated August 1, 2016, by and
between the KeyStone Solutions, Inc. and the Executive (the
“Agreement”), and
WHEREAS, the
Company, KeyStone Solutions, Inc., KeyStone Merger Sub, LLC,
Brekford Merger Sub, Inc., and Brekford Traffic Safety, Inc. merged
into a single company (the “Merger”) named Novume
Solutions, Inc., and
WHEREAS, the
parties entered into a Restated, Amended And Supplemental
Employment Agreement on August 28, 2017 (the “2017
Agreement”) to supersede (to the extent inconsistent) the
Agreement, and
WHEREAS
the parties have agreed to modify certain terms of the 2017
Agreement to reflect certain changes to the terms of employment,
and
WHEREAS
the Company desires to employ the Executive under the terms of this
2018 Agreement, and the Executive wishes to accept the terms of
employment with the Company, as set forth in this 2018 Agreement,
the 2017 Agreement and the Agreement (collectively referred to as
the “Agreements”).
WITNESSETH:
In
consideration of the mutual promises and agreements set forth
herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
1. Employment and Effective
Date.
a) The effective date
of the Agreements is December 23, 2016 (the “Agreement
Effective Date”), the date on which KeyStone Solutions closed
on the sale of its Series A Preferred Stock resulting in gross
proceeds to KeyStone Solutions as approved by the Board of
Directors of KeyStone Solutions (the “KeyStone Board”).
The Agreement Effective Date is the date on which the Agreement
first became binding on KeyStone Solutions and the
Executive.
b) The
Executive’s title shall be Executive Vice President,
Corporate Development as of the 2017 Agreement Effective Date. The
Executive’s position and assignments are subject to change.
The Executive hereby accepts such employment by the Company upon
the terms and conditions hereinafter set forth.
2. Compensation.
a) For performance of
all services rendered under this 2018 Agreement, the Company shall
pay the Executive a base salary at an annualized rate of $285,000
(the “Base Salary”) in installments payable in
accordance with the Company’s customary payroll practices and
the law. The new Base Salary shall become effective March 1, 2018.
The Executive shall receive a performance review on the anniversary
of the Agreement Effective Date, and the review will include a
determination of potential adjustment of the Executive’s Base
Salary, along with consideration for an annual discretionary
performance bonus. Discretionary interim period performance bonuses
may also be awarded to the Executive. Nothing herein should be
interpreted as a guarantee of any discretionary performance bonus
or salary increase.
b) The Executive was
previously granted in the Agreement an option to purchase 90,000
shares of KeyStone Solutions’ common stock (the
“Option”). The Option was subject to the terms of the
KeyStone Solutions, Inc. 2016 Equity Award Plan (the
“Plan”) and applicable stock option agreement provided
by KeyStone Solutions and signed by the Executive and approved by
the KeyStone Board. Upon the Merger, the Option will be converted
into 174,595 options to purchase
Company common stock, at a strike price of $1.4176 per share
pursuant to the 2017 Equity Award Plan of the Company
(the”2017 Equity Plan”). Pursuant to the terms
of the Plan, the Option shares began vesting in successive equal
monthly installments starting March 1, 2017 and continuing over the
24-month period thereafter. The vesting of options to purchase
stock that vested under the Plan will be deemed converted into
vested options under the 2017 Equity Plan to the same extent as
they had already vested under the Plan, as of the 2017 Agreement
Effective Date. Such vested options shall remain in effect provided
that the Executive continues in service with the Company through
each vesting event as provided in the 2017 Equity Plan, as same may
be amended from time to time.
3. Duties. The Executive shall be
employed as an executive of the Company, and shall have such duties
as are assigned or delegated to him by the Company. The Executive
shall devote his full working time and attention to the business of
the Company and shall cooperate fully in the advancement of the
best interests of the Company. Subject to approval from the Company
in writing in advance, the Executive agrees not to engage in any
activities outside of the scope of the Executive’s employment
that would detract from, or interfere with, the fulfillment of his
responsibilities or duties under this Agreement.
4. Expenses. Subject to compliance
by the Executive with such policies regarding expenses and expense
reimbursement as may be adopted from time to time by the Company,
the Executive is authorized to incur reasonable expenses in the
performance of his duties hereunder in furtherance of the business
and affairs of the Company, and the Company will reimburse the
Executive for all such reasonable expenses, upon the presentation
by the Executive of an itemized account satisfactory to the Company
in substantiation of such expenses when claiming
reimbursement.
5. Employee Benefits; Vacations.
The Executive shall be eligible to participate in such life
insurance, medical and other employee benefit plans of the Company
that may be in effect from time to time, to the extent he is
eligible under the terms of those plans, on the same basis as other
similarly situated executive officers of the Company. The Company
may from time to time modify or eliminate any or all benefits
extended or provided in its sole discretion, subject to applicable
law. The Executive shall be entitled to three weeks of paid
vacation per year, which shall accrue and be used in accordance
with the policies of the Company in effect from time to time, as
determined by the Board of Directors of the Company. Subject to
such policies, any accrued but unused paid vacation shall be paid
out to Executive upon termination of employment unless the Company
terminates Executive’s employment for Cause (as defined in
Section 11) or the Executive resigns his employment for other than
Good Reason (as defined in Section 11).
6. Taxation of Payments and
Benefits. The Company shall 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 Company to make any
payments to compensate the Executive for any adverse tax effect
associated with any payments or benefits or for any deduction or
withholding from any payment or benefit.
7. Termination. Either the
Executive or the Company may terminate the employment relationship
at any time, with or without Cause (as such term is defined in
Section 11) on advance notice as provided herein or with immediate
effect if the termination is for Cause. The Executive agrees to
give the Employer at least fourteen (14) days prior written notice
if he decides to terminate his employment. Except in the case of a
termination for Cause, the Company agrees that it will provide
identical notice. The term of the Executive’s employment
hereunder shall continue until this Agreement is terminated as
provided below, and is hereinafter referred to as the
“Employment Period.” Upon termination of the
Executive’s employment for any reason, the Executive will be
entitled to any earned but unpaid Base Salary, commission, and
bonus, as required by law, as well as the following additional
benefits:
a) Subject to
compliance with Section 7(d), in the event that the
Executive’s employment is terminated by the Company, for
reasons other than Cause (as such term is defined in Section 11) or in the event the
Executive resigns his employment for Good Reason (as defined in
Section 11), the
Executive will be provided a severance package equal to a
pre-determined number of months of base salary and such percentage
of health premiums for the Executive’s family as would have
been paid for by the Company (pursuant to the applicable policy and
plan documents) during the corresponding time period (collectively,
the “Separation Payment”) pursuant to the schedule
below:
●
September
1-September 30, 2017, a period of twelve (12) months after
termination;
●
October 1-October
31, 2017, a period of eleven (11) months after
termination;
●
November 1-November
30, 2017, a period of ten (10) months after
termination;
●
December 1-December
31, 2017, a period of nine (9) months after
termination;
●
January 1-January
31, 2018, a period of eight (8) months after
termination;
●
February 1-February
28, 2018, a period of seven (7) months after termination;
or
●
March 1, 2018 or
after, a period of six (6) months after termination.
The
Separation Payment shall be paid in equal monthly installments and
shall begin within fifteen (15) business days of the effective date
of the release noted in Section 7(d). In the event that the
Executive’s employment is terminated by the Company for
reasons other than Cause or by the Executive for Good Reason, half
of all unvested Option shares shall vest immediately, pursuant to
the terms of the applicable stock option agreement and Plan
(together with Separation Payment, the “Separation
Consideration”).
b) In the event that
the Executive’s employment is terminated for Cause or the
Executive resigns without Good Reason, the Executive will not be
entitled to any Separation Consideration or any other severance
remuneration.
c) Notwithstanding any
termination of the Executive’s employment for any reason
(with or without Cause or Good Reason), the Executive will continue
to be bound by the provisions of the Proprietary Rights Agreement
(as defined below).
d) All payments and
benefits provided pursuant to Section 7(a) shall be conditioned
upon the Executive’s execution and non-revocation of a
general release of liabilities favoring the Company. The
Executive’s refusal to execute a general release shall
constitute a waiver by the Executive of any and all benefits
referenced in Section 7(a). The Company will not be obligated to
commence or continue any such payments to the Executive under
Section 7(a) in the event the Executive materially breaches the
terms of the 2018 Agreement or the Confidentiality Agreement (as
defined below) and fails to cure such breach within thirty (30)
days of written notice thereof detailing such breach.
8. Confidentiality,
Non–Solicitation and Invention Assignment Agreement.
The Company considers the protection of its confidential
information and proprietary materials to be very important.
Therefore, as a condition of the Executive’s employment, the
Executive will be required to execute a confidentiality,
non-solicitation and invention assignment agreement substantially
in the form attached hereto as Exhibit A (the “Proprietary
Rights Agreement”) on the date hereof.
9. Documents, Records, etc. All
documents, records, data, apparatus, equipment and other physical
property, whether or not pertaining to Confidential Information (as
defined in the Proprietary Rights Agreement), which are furnished
to the Executive by the Company or are produced by the Executive in
connection with the Executive’s employment will be and remain
the sole property of the Employer. The Executive will return to the
Company all such materials and property as and when requested by
the Employer. In any event, the Executive will return all such
materials and property immediately upon termination of the
Executive’s employment for any reason.
10. No Conflict. The Executive
hereby represents and warrants to the Company that (a) the 2018
Agreement constitutes the Executive’s legal and binding
obligation, enforceable against him in accordance with its terms,
(b) his execution and performance of the 2018 Agreement does not
and will not breach any other agreement, arrangements,
understanding, obligation of confidentiality or employment
relationship to which he is a party or by which he is bound, and
(c) while employed by the Company, he will not enter into any
agreement, either written or oral, in conflict with the 2018
Agreement or his obligations hereunder.
11. Definitions.
a) The term
“Cause” shall mean (i) the Executive’s
intentional, willful or knowing failure or refusal to perform the
Executive’s duties (other than as a result of physical or
mental illness, accident or injury); (ii) dishonesty, willful or
gross misconduct, or illegal conduct by the Executive in connection
with the Executive’s employment with the Company; (iii) the
Executive’s conviction of, or plea of guilty or nolo
contendere to, a charge of commission of a felony (exclusive of any
felony relating to negligent operation of a motor vehicle); and
(iv) a material breach by the Executive of the Proprietary Rights
Agreement; provided, however, in the case of clauses (i) and (iv)
above, the Company shall be required to give the Executive fifteen
(15) calendar days prior written notice of its intention to
terminate the Executive for Cause and the Executive shall have the
opportunity during such fifteen (15) day period to cure such event
if such event is capable of being cured; provided, further, that in
the event that the Executive terminates his employment with the
Company during such fifteen (15) day period for any reason, such
termination shall be considered a termination for
Cause.
b) The term
“Good Reason” shall mean (i) any material reduction of
the Executive’s Base Salary, unless similar reductions are
imposed on all similarly situated executive officers of the Company
(ii) any material breach by the Company of its obligations under
the 2018 Agreement, and (iii) a change without the
Executive’s consent in the principal location of the
Company’s office to an office that is more than 25 miles from
the current location and the Executive’s primary residence
(if such move increases the Executive’s commute); provided
that in any case the Executive provides the Company with written
notice of the Executive’s intention to terminate the
Executive’s employment for Good Reason within thirty (30)
days after the occurrence of the event that the Executive believes
would constitute Good Reason, gives the Company an opportunity to
cure for thirty (30) days following receipt of such notice from the
Executive, if the event is capable of being cured or, if not
capable of being cured, to have the Company’s representatives
meet with the Executive and the Executive’s counsel to be
heard regarding whether Good Reason exists for the Executive to
terminate the Executive’s employment with the Company and the
Executive terminates employment within thirty days after the end of
the cure period if the Good Reason condition is not
cured.
c) The term
“person” shall mean any individual, corporation, firm,
association, partnership, other legal entity or other form of
business organization.
12. Section
409A.
a) Anything in the
2018 Agreement to the contrary notwithstanding, if at the time of
the Executive’s separation from service within the meaning of
Section 409A of the Code, the Company determines that the Executive
is a “specified employee” within the meaning of Section
409A(a)(2)(B)(i) of the Code, then to the extent any payment or
benefit that the Executive becomes entitled to under the 2018
Agreement on account of the Executive’s separation from
service would be considered deferred compensation subject to the 20
percent additional tax
imposed
pursuant to Section 409A(a) of the Code as a result of the
application of Section 409A(a)(2)(B)(i) of the Code, such payment
shall not be payable and such benefit shall not be provided until
the date that is the earlier of (A) six months and one day after
the Executive’s separation from service, or (B) the
Executive’s death. If any such delayed cash payment is
otherwise payable on an installment basis, the first payment shall
include a catch-up payment covering amounts that would otherwise
have been paid during the six-month period but for the application
of this provision, and the balance of the installments shall be
payable in accordance with their original schedule.
b) The parties intend
that the 2018 Agreement will be administered in accordance with
Section 409A of the Code. To the extent that any provision of this
Agreement is ambiguous as to its compliance with Section 409A of
the Code, the provision shall be read in such a manner so that all
payments hereunder comply with Section 409A of the Code. The
parties agree that the 2018 Agreement may be amended, as reasonably
requested by either party, and as may be necessary to fully comply
with Section 409A of the Code and all related rules and regulations
in order to preserve the payments and benefits provided hereunder
without additional cost to either party.
c) The determination
of whether and when a separation from service has occurred shall be
made by the Company in accordance with the presumptions set forth
in Treasury Regulation Section 1.409A-1(h).
d) The Company makes
no representation or warranty and shall have no liability to the
Executive or any other person if any provisions of the 2018
Agreement are determined to constitute deferred compensation
subject to Section 409A of the Code but do not satisfy an exemption
from, or the conditions of, such Section.
13. Successors and Assigns; Entire
Agreement; No Assignment. the 2018 Agreement shall bind and
inure to the benefit of the parties hereto and their respective
successors or heirs, distributes and personal representatives. The
2018 Agreement and the Proprietary Rights Agreement contain the
entire agreement between the parties with respect to the subject
matter hereof and supersede other prior and contemporaneous
arrangements or understandings with respect thereto. The Executive
may not assign the 2018 Agreement without the prior written consent
of the Company.
14. Notices. All notices and other
communications required or permitted hereunder or necessary or
convenient in connection herewith shall be in writing and shall be
deemed to have been given when hand-delivered, mailed by registered
or certified mail (three days after deposited), faxed (with
confirmation received) or sent by a nationally recognized courier
service, as follows (provided that notice of change of address
shall be deemed given only when received):
If to the
Company:
00000
Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX
00000
Attn:
Chairman
Attn:
CEO
If to the
Executive:
Xxxx
Xxxxxxxxxx
0000
00xx Xx.
XX
Xxxxxxxxxx, XX
00000
or to
such other names and addresses as the Company or the Executive, as
the case may be, shall designate by notice to each other person
entitled to receive notices in the manner specified in this
Section 14.
15. Changes; No Waiver; Remedies
Cumulative. The terms and provisions of the Agreements may
not be modified or amended, or any of the provisions hereof waived,
temporarily or permanently, without the prior written consent of
each of the parties hereto. Either party’s waiver or failure
to enforce the terms of the Agreements or any similar agreement in
one instance shall not constitute a waiver of its or his rights
hereunder with respect to other violations of this or any other
agreement. No remedy conferred upon the Company or the Executive by
the 2018 Agreement is intended to be exclusive of any other remedy,
and each and every such remedy shall be cumulative and shall be in
addition to any other remedy given hereunder or now or hereafter
existing at law or in equity.
16. Governing Law. The Agreements
and (unless otherwise provided) all amendments hereof and waivers
and consents hereunder shall be governed by the law of the
Commonwealth of Virginia, without regard to the conflicts of law
principles.
17. Severability. The Executive and
the Company agree that should any provision of the 2017 Agreement
be judicially determined invalid or unenforceable, that portion of
the 2018 Agreement may be modified to comply with the law. The
Executive and the Company further agree that the invalidity or
unenforceability of any provision of the 2018 Agreement will not
affect the validity or enforceability of its remaining
provisions.
18. Execution of Other Agreements.
The Confidentiality Agreement is hereby incorporated into the 2017
Agreement in its entirety and is made an integral part of the 2018
Agreement .
19. Headings; Counterparts. All
section headings are for convenience only. The 2018 Amendment may
be executed in several counterparts, each of which is an original,
and may be transmitted electronically, with such electronic copy
serving as an original.
20. Termination of the 2018
Agreement. Unless otherwise terminated pursuant to Section
7, this 2018 Agreement expires three years from the date of the
Agreement Effective Date, but may be extended in writing by mutual
consent.
IN
WITNESS WHEREOF, the parties have executed this Employment
Agreement as of the date first above written.
SEE
SEPARATE SIGNHATURE PAGE
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
EXECUTIVE:
/s/ Xxxx Xxxxxxxxxx
XXXX
XXXXXXXXXX
EXHIBIT A
PROPRIETARY RIGHTS AGREEMENT
THIS PROPRIETARY RIGHTS
AGREEMENT (the
“Agreement’) dated as of the same date as the Second
Restated, Amended and Supplemental Employment Agreement (the
“Employment Agreement”) between the parties of even
date herewith between Novume Solutions, Inc. (the
“Company”), a Delaware corporation, and Xxxx Xxxxxxxxxx
(“You”, “Your” or the
“Executive”).
WITNESSETH:
WHEREAS, the parties desire to confirm
their understanding with
respect to (i) your agreement not to compete with the Company or
any present or future parent, subsidiary or affiliate thereof
(collectively, the “Company Group”), (ii) your
agreement to protect and preserve information and property which is
confidential and proprietary to the
Company and/or the Company Group and (iii) your agreement
with respect to the ownership of inventions, ideas, copyrights and
patents which may be used in the business of the Company
and/or the Company Group,
and
WHEREAS, your execution and return of this
Agreement is a condition of your employment with the Company.
NOW
THEREFORE, in
consideration of the mutual promises and covenants contained in
this Agreement and the Employment
Agreement between the parties of even date herewith, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby mutually acknowledged, the parties hereto hereby agree as
follows:
1.
Prohibited Competition, Solicitation and
Disparagement.
(a) Certain
Acknowledgements and Agreements.
(i) We
have discussed, and you recognize and acknowledge the competitive
and proprietary aspects of the business of the Company and the Company Group.
(ii) You
acknowledge that a business will be deemed a “Competitive
Business” if it competes directly with any of the services or
manufactures or sells any directly competitive product provided or offered by, or which could substitute for services or
products of, the Company or the Company Group during the year preceding the termination of your
employment with the Company or the Company Group or if it performs
any other services and/or engages in the marketing, production,
manufacture, distribution or sale of any product or service
substantially similar to
or which could substitute for
services or products performed, produced, marketed, manufactured,
distributed, sold, under development or planned by the Company
or the Company Group during
the year preceding the termination
of your employment with the Company or the Company Group.
(iii) You
further acknowledge that, during the course of your employment with the Company or Company Group, the Company and/or the Company Group will furnish, disclose or make available to
you valuable Confidential Information (as defined below) related to
the Company’s and the
Company Group’s business and that the Company
and the Company Group
will provide you with unique
and specialized training, experiences and opportunities.
You also acknowledge that such
Confidential Information and such training, experiences and
opportunities have been developed and will be developed by the
Company and the Company Group through the expenditure by the
Company and/or the Company Group of substantial time, effort and
money and that the Company believes that all such Confidential
Information and training, experiences and opportunities could be
used by you to compete with the Company and/or the Company
Group. Further, in the course of your employment with the
Company and/or
Company Group, you will
be introduced to and collaborate with and maintain substantial
relationships with customers, prospective customers, other business
partners, and prospective business partners of the Company and/or Company Group.
(iv) For
purposes of this Agreement, “Confidential Information,”
means confidential
and proprietary information of the Company and/or the Company Group, whether in
written, oral, electronic or other form, including but not limited
to, information and facts concerning business plans, marketing
plans, strategies, forecasts, customers, future customers,
suppliers, licensors, licensees, partners, investors, affiliates or others, training methods and
materials, financial information, pricing, sales prospects, client
and partner lists, inventions, tests, test results, product
assessments, improvements or any other scientific, technical or
trade secrets of the Company and/or
the Company Group or of any third party provided to you or the
Company and/or the Company Group, provided that Confidential
Information will not include information that is in the public
domain or that is generally known by
competitors of the Company or
the Company Group other
than through any fault, act or
omission by you. The phrase, “trade secrets,” as used
in this Agreement, will be given its broadest possible
interpretation under the law of the Commonwealth of Virginia and
will include, without limitation, anything tangible or intangible
or electronically kept or stored, which constitutes, represents,
evidences or records any secret scientific, technical,
merchandising, production or management information, or any design,
process, procedure, formula, invention, improvement or other
confidential or proprietary information or
documents.
(v) You
acknowledge that the Company has stated to you that the
Company’s and the Company Group’s business reaches
worldwide and that the Company and the Company Group does not
operate as a traditional “brick and mortar” business
with operations in a limited geographic area.
(vi)
For purposes of this agreement, “termination” is
defined to include your resignation or termination by the Company
and/or the Company Group under
any circumstances.
(b) Non-Competition;
Non-Solicitation; Non-Disparagement. During the period in which you are employed by
the Company and/or the Company
Group and for a period of one
(1) year following the termination of your employment with
the Company and/or the Company Group for any reason or for no reason,
you will not, without the prior written consent of the
Company and/or the Company
Group, as applicable:
(i) Subject
only to the terms of your Employment Agreement with the Company of
even date herewith, for yourself or on behalf of any other
person or entity, directly or
indirectly, either as principal, partner, stockholder,
officer, director, member, employee, consultant, agent,
representative or in any other capacity, own, manage,
operate, control or consult with or for, or be employed
by, or otherwise associate in any manner with,
engage in, or have an ownership
or other financial interest in,
any Competitive Business to provide the same type of services you
provided to the Company or the Company
Group (each, a “Restricted Activity”) anywhere
in the United States where the Company or the Company Group’s business has
reached at any time during your employment with the Company or the Company Group (the “Restricted
Territory”), except that nothing contained herein will
preclude you from purchasing or owning securities of any such
business if such securities are publicly traded, and provided that
your holdings do not exceed one percent (1%) of the issued and
outstanding securities of any class of securities of such business;
or
(ii) Either
individually or on behalf of or through any third party,
directly or indirectly,
solicit, divert or appropriate or attempt to solicit, divert or
appropriate any customer or other business partner of the Company
or the Company Group (or any person or
entity which was a customer or business partner, or a prospective
customer or business partner with respect to which the Company
and/or the Company Group has developed or made a sales
presentation), with whom you had material contact
during the period in which you were
employed with the
Company and/or the Company
Group, for the purpose of competing with the Company
or the Company Group or
reducing the Company’s or the
Company Group’s relationship with any customers or
other business partners of the Company
or the Company Group; or
(iii) Either
individually or on behalf of or through any third party,
directly or indirectly, employ,
hire, cause to be employed or engaged, or solicit the employment or
the engagement as a consultant of any employee of or consultant to
the Company or the Company
Group while any such person is employed by or providing consulting services
to the Company or the
Company Group or within six (6) months after any such person
ceases to be an employee or
consultant with the Company Group; or
(iv) Either
individually or on behalf of or through any third party, directly
or indirectly, interfere with or attempt to interfere with, the
relations between the Company and/or the Company Group and any
vendor or supplier to the Company or the Company Group;
or
(v) During
the course of your employment
with the Company and/or the Company
Group and at all times thereafter (notwithstanding the one year
period noted above), you will not make any statement that is
professionally or personally disparaging or defamatory about the Company
the Company Group, any of its
officers, directors, shareholders or employees including, but not
limited to, any statement that disparages any person, product,
service, financing, financial condition, capability or other aspect
of the Company’s or the
Company Group’s business or any of its officers,
directors, shareholders or employees. You further agree that during the course of your
employment with the Company and/or the Company Group you will not
engage in any conduct that is intended to or has the result of
inflicting harm upon the professional or personal reputation of the
Company or the Company Group or any of its officers, directors,
shareholders or employees.
(vi)
The Company Group agrees and covenants
that it shall take all
corporate action within its power to cause its officers and directors to refrain from
making any defamatory or disparaging remarks, comments, or
statements concerning you during the term of your employment with the
Company and/or the Company
Group and at all times
thereafter.
(vii)
This Section 1(b) does not,
in any way, restrict or impede the parties 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.
(c) Reasonableness
of Restrictions. You further
recognize and acknowledge that (i) the types of employment which
are prohibited by this Section 1 are narrow and reasonable in
relation to the skills which represent your principal salable
assets both to the Company and the Company Group and to other
prospective employers, and (ii) the specific but broad geographical
scope of the provisions of this Section 1 is reasonable, legitimate
and fair to you in light of the nature of the company’s and
the Company Group’s technology and services, the
Company’s and the Company Group’s need to market and
sell its services and products in an appropriate manner and in
light of the limited restrictions on the type of activity
prohibited compared to the activities for which you are qualified
to earn a livelihood. Therefore, you agree that each of the
provisions of this Section 1 is fair and reasonable in scope and
duration, to adequately protect the Company’s and the Company
Group’s legitimate interests, and constitutes a key component
of, and consideration for, this Section 1.
(d) Survival of
Acknowledgements and Agreements. Your acknowledgements and agreements set forth
in this Section 1 will survive the termination of your employment
with the Company for any reason or for no
reason.
2. Protected Information. You will
at all times, both during the period while you are employed by the Company and after the
termination of your employment
with the Company and/or the Company
Group for any reason or for no reason, maintain in
confidence and will not, without the prior written consent of the
Company and/or the Company Group (as
applicable), use, except in the course of performance of
your duties for the Company and/or the
Company Group or by court order or other applicable legal process, disclose
or give to others any Confidential Information. In the
event you are questioned about, or requested to provide,
Confidential Information by anyone not employed by or otherwise
affiliated with the Company or the Company Group or by an employee
of or a consultant to the Company or the Company Group (or any
other person) not authorized to receive Confidential Information,
or concerning any fact or circumstance relating thereto, you will
promptly notify the Company and the Company Group. Upon the
termination of your employment
with the Company and the
Company Group for any reason or for no reason, or if the
Company or the Company Group
otherwise requests, (i) you will return to the Company and the Company Group all tangible
Confidential Information and copies thereof (regardless how such
Confidential Information or copies are maintained) and (ii) you
will deliver to the Company and the
Company Group any property of the Company or the Company Group which may
be in your possession, including products, materials, memoranda,
notes, records, reports, or other documents, photocopies or
electronic versions of the same. The terms of this Section 2 are in
addition to, and not in lieu of, any statutory or other contractual
or legal obligation that you may have relating to the protection of
the Company and the Company
Group’s Confidential Information. The terms of this Section 2
will survive indefinitely any termination of your employment with the Company Group for any
reason or for no reason.
3.
Ownership of Ideas, Copyrights and Patents.
(a) Property of the Company and/or the Company Group. All ideas, discoveries, creations, manuscripts
and properties, innovations, improvements, know-how, inventions,
designs, developments, apparatus, techniques, methods, and formulae
(collectively the “Inventions”) which may be used in
the business of the Company or
the Company Group, whether
patentable, copyrightable or not, which you
conceive, reduce to
practice or develop (whether
alone or in conjunction with another or others) during the period
while you are employed with the Company and/or the Company Group and which in any way
relate to the Company’s or the Company Group’s
business will be the sole and
exclusive property of the Company and/or Company Group (as applicable).
You agree that you will not publish
any of the Inventions without the prior written consent
of the Company and
the Company Group. Without limiting
the foregoing, you also acknowledge that all original works of
authorship which are made by you (solely or jointly with others)
during and within the scope of your employment or during your employment which relate to the
business of the Company or the Company Group or a Company or
Company Group affiliate and which are protectable by copyright are
“works made for hire” pursuant to the United States
Copyright Act (17 U.S.C. Section 101). You hereby assign to the Company Group or its
designee all of your right, title and interest in and to all of the
foregoing. You further represent that, to the best of your
knowledge and belief, none of the Inventions will violate or
infringe upon any right, patent, copyright, trademark or right of
privacy, or constitute libel or slander against or violate any
other rights of any person, firm or corporation, and that you will
use your best efforts to prevent any such
violation.
(b) Cooperation.
At any time during or after the period during which you are
employed by the Company Group, you will fully cooperate with the
Company Group and its attorneys and agents, as is reasonably
necessary, in the preparation and filing of all papers and other
documents as may be required to perfect the Company Group’s
rights in and to any of such Inventions, including, but not limited
to, joining in any proceeding to obtain letters patent, copyrights,
trademarks or other legal rights with respect to any such
Inventions in the United States and in any and all other countries,
provided that the Company Group will bear the expense of such
proceedings, and that any patent or other legal right so issued to
you personally will be assigned by you to the Company Group or its
designee without charge by you.
(c) Licensing and Use of Innovations. With respect to
any Inventions, and work of any similar nature (from any source),
whenever created, which you have not prepared or originated in the
performance of your employment, but which you provide to the
Company Group or incorporate in any Company Group product or
system, to the extent that the Executive has the right, power,
authority or discretion to do so, you hereby grant to the Company
Group a royalty-free, fully paid-up, non-exclusive, perpetual and
irrevocable license throughout the world to use, modify, create
derivative works from, disclose, publish, translate, reproduce,
deliver, perform, dispose of, and to authorize others so to do, all
such Inventions. You will not include in any Inventions you deliver
to the Company Group or use on its behalf, without the prior
written approval of the Company Group, any material which is or
will be patented, copyrighted or trademarked by you or others
unless you provide the Company Group with the written permission of
the holder of any patent, copyright or trademark owner for the
Company Group to use such material in a manner consistent with
then-current Company Group policy. Subject to the license referred
to hereinabove, nothing in this
Agreement shall be construed as an assignment, transfer, waiver, or
relinquishment by you of any rights, title, or interests
(including, without limitation, patent, copyright and trademark
interests) in Inventions or works of authorship conceived or
developed by you either before your employment with the Company or
after your employment with the Company.
4. Disclosure to Future Employers.
During your employment with the company and for the period of one
(1) year immediately thereafter, you will provide, and the Company Group,
in its discretion, may provide, a copy of this Agreement to any
business or enterprise which you may directly or indirectly own,
manage, operate, finance, join, control or in which you may
participate in the ownership, management, operation, financing, or
control, or with which you may be connected as an officer,
director, employee, partner, principal, agent, representative,
consultant or otherwise.
5. No Conflicting Agreements. You
hereby represent and warrant that you have no commitments
or obligations inconsistent with this Agreement and that you will indemnify and hold the
Company Group harmless against loss, damage, liability or expense
arising from any claim based upon any purported inconsistent
commitment or obligation. In addition:
(a) You represent
that you have no agreement or other legal obligation with any prior
employer or any other person or entity that restricts your ability to perform any function for
the Company.
(b) You
have been advised by the Company that at no time should you divulge
to or use for the benefit of the Company any trade secret or
confidential or proprietary information of any previous employer.
You have not divulged or used any such information for the benefit
of the Company.
(c) You
have not and will not misappropriate any Invention that you played
any part in creating while working for any former
employer.
(d) You recognize that the Company and the Company Group have received, and in the future will receive,
confidential or proprietary information from third parties subject
to a duty on the Company and/or
the Company Group to maintain
the confidentiality of such information and to use it only for
certain limited purposes. You agree to hold all such confidential
and proprietary information in the strictest confidence and not to
disclose it to any person or entity or to use it except
as necessary in the course of performance of your duties for
the Company and/or the Company
Group consistent with the
Company’s and/or the
Company Group’s agreement
with such third parties or pursuant to a court order or other
applicable legal process (in
which instance you will provide the Company and the Company Group
with notice of such court order or other applicable legal process
within four [4] business day of your receipt of
same).
(e) You
acknowledge that the Company has based important business decisions
on these representations, and affirm that all of the statements
included herein are true.
6.
General.
(a) Agreement
Enforceable if You Are Transferred. You acknowledge and agree that
if consistent with the Employment Agreement of even date herewith
or pursuant to your agreement you should transfer between or among
any affiliates of the Company, wherever situated, or be promoted or
reassigned to functions other than your present functions, all
terms of this Agreement shall continue to apply with full
force.
(b) All
notices and other communications required or permitted hereunder or
necessary or convenient in connection herewith shall be in writing
and shall be deemed to have been given when hand-delivered, mailed
by registered or certified mail (three days after deposited), or
sent by a nationally recognized courier service (i.e. UPS, FedEx),
to the following address (provided that notice of change of address
shall be deemed given only when received):
If to the
Company:
Novume Solutions,
Inc.
00000
Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx,
XX 00000
Attn
: Xxxxxx Xxxxxx, CEO
xxxxxx@xxxxxx.xxx
If to Executive:
Xxxx
Xxxxxxxxxx
0000
00xx Xx. XX
Xxxxxxxxxx, XX
00000
xxxx@xxxxxx.xxx
or to such other names and addresses as the
Company, the Company
Group or the Executive, as the
case may be, shall designate by notice to each other person
entitled to receive notices in the manner specified in this Section
6(b). A copy of any such notice or communication
under this Section 6(b) shall be
transmitted via electronic mail to the party’s corresponding
email address on the same day as the notice’s or
communication’s hand-delivery, mailing, or transmission by
courier service.
(c) Entire Agreement. This Agreement and the
Employment Agreement contain the entire agreement between the
parties with respect to the subject matter hereof and supersede
other prior and contemporaneous arrangements, agreements, promises, warranties and
understandings with respect
thereto. No statement,
representation, warranty, covenant or agreement of any kind not
expressly set forth in this Agreement or the Employment Agreement
will affect, or be used to interpret, change or restrict, the
express terms and provisions of this Agreement.
(d) Modifications, Amendments and
Waivers. The terms and
provisions of this Agreement may not be
modified, amended, altered,
revised, changed, waived, terminated, cancelled and/or rescinded,
in whole or in part, except by a writing executed by the parties hereto or except as otherwise specifically and expressly
set forth herein. No such waiver, nor any departure from the terms
hereof, will be deemed to be or
will constitute a waiver or consent with respect to any other terms
or provisions of this Agreement, whether or not similar. Each such
waiver or consent will be effective only in the specific instance
and for the purpose for which it was given, and will not constitute
a continuing waiver or consent.
(e) Assignment. The Company may assign its rights and
obligations hereunder to any person or entity that succeeds to all
or substantially all of the Company or the Company Group’s business. You may not assign your rights
and obligations under this Agreement without the prior written
consent of the Company and the
Company Group and any such
attempted assignment by you without the prior written consent of
the Company and the
Company Group will be
void.
(f) Benefit.
All statements, representations, warranties, covenants and
agreements in this Agreement will be binding on the parties hereto
and will inure to the benefit of the respective successors and
permitted assigns of each party hereto. Nothing in this Agreement
will be construed to create any rights or obligations except
between the Company and the Company Group and you, and no person or
entity other than the Company Group will be regarded as a
third-party beneficiary of this Agreement.
(g) Governing
Law. This Agreement shall be deemed to have been made in the
Commonwealth of Virginia, and the validity, interpretation and
performance of this Agreement shall be governed by, and construed
in accordance with, the internal law of the Commonwealth of
Virginia, without giving effect to conflict of law principles, and
specifically excluding any conflict or choice of law rule or
principle that might otherwise refer construction or interpretation
of this Agreement to the substantive law of another
jurisdiction.
(h) Jurisdiction,
Venue and Service of Process. Any legal action or proceeding with
respect to this Agreement must be brought in a court of competent
jurisdiction in the Commonwealth of Virginia and shall be subject
to the jurisdiction of such courts only. By execution and delivery
of this Agreement, each of the parties hereto accepts for itself
and in respect of its property, generally and unconditionally, the
exclusive jurisdiction of the aforesaid courts.
(i) Waiver
of Jury Trial. Any action, demand, claim or counterclaim arising
under or relating to this Agreement will be resolved by a judge
alone and each of the Company Group and you waive any right to a
jury trial thereof.
(j) Severability. The parties intend this Agreement to
be enforced as written. However, (i) if any provision, or part
thereof, is held to be unenforceable because of the duration of
such provision or the geographic area covered thereby, the court
making such determination will have the power to reduce the
duration and/or geographic area of such provision, and/or to delete
specific words and phrases (“blue-pencilling”), and in
its reduced or blue-pencilled form such provision will then be
enforceable and will be enforced to the fullest extent permitted by
law and (ii) if any portion or provision of this Agreement is to
any extent declared illegal,
void, invalid, or otherwise unenforceable by a court of competent
jurisdiction which shall
determine that any such illegal, void, invalid or unenforceable
provisions cannot be cured by blue-pencilling, then
the remaining parts, terms or
provisions shall not be affected thereby and shall be enforceable between the parties to
the fullest extent of the law,
and said illegal, void,
invalid or otherwise unenforceable part, term or provision shall be deemed not to be
a part of this Agreement.
(k) Headings
and Captions. The headings and captions of the various subdivisions
of this Agreement are for convenience of reference only and will in
no way modify or affect the meaning or construction of any of the
terms or provisions hereof.
(l) Injunctive Relief. You hereby expressly
acknowledge that the restrictions and covenants set forth in
Section 1, 2, and 3 are material and critically important
provisions of this Agreement and that any breach or threatened
breach of any of the terms and/or conditions set forth in Section
1, 2 or 3 of this Agreement may result in
substantial, continuing and irreparable injury to the Company Group
and/or damages that may be difficult to quantify. Therefore, in
addition to any other remedy that may be available to the Company
Group, it may be appropriate that the Company Group
receive a temporary restraining order
and/or preliminary injunction, by a court of appropriate
jurisdiction in the event of any breach or threatened breach of the
terms of Section 1, 2 or 3 of this Agreement, without the necessity
of proving actual damages or
irreparable harm, and without the necessity of posting any bond or
undertaking for the temporary restraining order or preliminary
injunction.
(m) No
Waiver of Rights, Powers and Remedies. No failure or delay by a
party hereto in exercising any right, power or remedy under this
Agreement, and no course of dealing between the parties hereto or
in any trade or industry, will operate as a waiver of any such
right, power or remedy of the party. No single or partial exercise
of any right, power or remedy under this Agreement by a party
hereto, nor any abandonment or discontinuance of steps to enforce
any such right, power or remedy, will preclude such party from any
other or further exercise thereof or the exercise of any other
right, power or remedy hereunder. The election of any remedy by a
party hereto will not constitute a waiver of the right of such
party to pursue other available remedies. No notice to or demand on
a party not expressly required under this Agreement will entitle
the party receiving such notice or demand to any other or further
notice or demand in similar or other circumstances or constitute a
waiver of the rights of the party giving such notice or demand to
any other or further action in any circumstances without such
notice or demand.
(n) Counterparts.
This Agreement may be executed in two or more counterparts, and by
different parties hereto on separate counterparts, each of which
will be deemed an original, but all of which together will
constitute one and the same instrument.
(o) Opportunity
to Review. You hereby acknowledge that you have had adequate
opportunity to review these terms and conditions and to reflect
upon and consider the terms and conditions of this Agreement, and
that you have had the opportunity to consult with counsel of your
own choosing regarding such terms. You further acknowledge that you
fully understand the terms of this Agreement and have voluntarily
executed this Agreement.
(p) Effective
Date. The Effective Date of this Agreement shall be the same
Effective Date as the Employment Agreement. The Effective Date is
the date which this Agreement first becomes binding on the Company
and the Executive.
IN WITNESS
WHEREOF, the parties have
executed this Proprietary Rights Agreement as of the
date of the Employment Agreement of
even date herewith.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
EXECUTIVE:
/s/ Xxxx Xxxxxxxxxx
XXXX
XXXXXXXXXX
