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Exhibit 10.7
AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (the
"Agreement"), is entered into as of July 8, 1999 (the "Effective Date"), by and
between OpenSite Technologies, Inc., a Delaware corporation (the "Corporation"),
and Xxx X. Xxxx (the "Executive"), an individual residing in Orange County,
North Carolina.
W I T N E S S E T H:
WHEREAS, the parties hereto entered into an Executive Employment Agreement
dated as of August 10, 1998 and wish to amend and restate such Executive
Employment Agreement; and
WHEREAS, the Corporation is engaged in the development and sale of auction
software for the Internet; and
WHEREAS, the Corporation wishes to employ Executive, and Executive desires
to accept employment with the Corporation, all upon the terms and conditions
enumerated below; and
WHEREAS, as a part of said employment by the Corporation, Executive is
expected to make new contributions of value to the Corporation and Executive
will otherwise have access to confidential and proprietary information of the
Corporation; and
WHEREAS, the Corporation desires to receive from Executive a covenant not
to disclose certain information relating to the Corporation's business and
certain other covenants.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
contained herein, and of other good and valuable consideration, including the
employment of Executive by the Corporation and the compensation received by
Executive from the Corporation from time to time, and specifically the
compensation to be received by the Executive pursuant to paragraphs 5(a), (b)
and (d) herein, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto, intending legally to be bound, hereby agree as follows:
1. EMPLOYMENT. The Corporation hereby employs Executive and Executive
hereby accepts employment by the Corporation upon the terms and conditions set
forth herein. Upon the termination of this Agreement as provided herein,
Executive's employment with the Corporation shall immediately terminate subject
to the terms and conditions of this Agreement. Executive agrees to serve as the
President of the Corporation and as a member of the Board of Directors of the
Corporation (the "Board of Directors"). Executive further agrees to serve as the
Chief Executive Officer of the Corporation beginning as of March 1, 1999.
Executive's principal responsibilities are set forth on Exhibit A attached
hereto.
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2. TERM. Subject to the provisions for termination that are provided
herein, the term of this Agreement shall be deemed to have commenced on the
Effective Date and shall continue until December 31, 2002 (the "Initial Term"),
and thereafter shall automatically be renewed on a year-to-year basis on the
same terms and conditions set forth herein unless terminated as provided herein
or unless amended or modified by mutual agreement of the parties hereto. (As
used throughout this Agreement, "Term" shall include the Initial Term and any
renewals thereof in accordance with the terms and conditions of this Agreement).
3. DUTIES. Executive shall faithfully perform all duties set forth on
Exhibit A attached hereto and in the Bylaws of the Corporation related to the
position held and those additional duties that are prescribed from time to time
by the Board of Directors.
4. EXCLUSIVE SERVICE. Executive agrees to devote his full time and
attention to the performance of his duties and responsibilities on behalf of the
Corporation and in furtherance of only its best interests; provided, however,
that Executive shall be permitted to engage in the following outside activities:
(a) teaching evening classes at Duke University; and (b) serving as the
shareholder representative of certain present and former employees of Accipiter,
Inc. who were shareholders of Accipiter, Inc. All conflicts between the
Executive's duties under this Agreement and the foregoing outside activities
shall be resolved in favor of the Corporation, and the Board of Directors may
reasonably revoke its consent to the Executive engaging in any such outside
activities if such a conflict arises. Executive agrees to comply with all
policies, standards and regulations of the Corporation now existing or hereafter
promulgated.
5. COMPENSATION. During the Term of this Agreement, Executive's
compensation shall be determined and paid as follows (all payments are subject
to required withholding):
(a) BASE SALARY. Executive shall receive as compensation an annual
salary of One Hundred and Fifty Thousand Dollars ($150,000) through and
including May 31, 1999 and of Two Hundred Thousand Dollars ($200,000)
beginning as of June 1, 1999, to be paid consistent with the payroll
payment schedule of the Corporation.
(b) BONUSES. As soon as reasonably practicable after the
consummation of the sale of the Series B Convertible Preferred Stock of
the Corporation, the Compensation Committee of the Board of Directors and
Executive shall agree upon an annual bonus plan to be applicable to
Executive for the Company's 1998 fiscal year, with the anticipated or
targeted amount of such bonus being Fifty Thousand Dollars ($50,000),
subject to increase or a decrease based upon extraordinary performance as
determined by the Board of Directors. For each fiscal year of the
Corporation beginning as of the 1999 fiscal year, Executive shall be paid
a target bonus of fifty percent (50%) of his annual base salary based upon
the achievement of goals that have been agreed to by Executive and by the
Compensation Committee of the Board of Directors of the Corporation and
subject to increase or decrease based upon extraordinary performance as
determined by the Compensation Committee of the Board of Directors. Prior
to the beginning of each fiscal year thereafter, the Board of Directors
and Executive shall agree on an annual bonus plan to be applicable to
Executive for such fiscal year. All such bonuses shall be paid
semi-annually. Nothing in this paragraph shall obligate the Corporation to
pay Executive any
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amount as a bonus until such amount has been determined and declared by
the Board of Directors; but the Corporation and Executive currently
contemplate that Executive shall be eligible to receive bonuses.
(c) BENEFITS. In addition to Executive's salary, Executive shall
receive those benefits provided from time to time by the Corporation to
other executive employees of the Corporation. All such benefits are
subject to change from time to time by the Corporation without the consent
of Executive or any other employee of the Corporation.
(d) PERFORMANCE BASED STOCK OPTION. If the Corporation institutes a
performance based stock option program for its senior management in
addition to the Corporation's existing Stock Option Plan, Executive shall
be entitled to participate in such program on a basis commensurate with
Executive's duties and compensation as compared to other employees of the
Corporation. Any stock option program instituted by the Corporation shall
be subject to modification by the Corporation at any time or from time to
time without the consent of Executive, except that any modification that
would adversely affect the options previously awarded to Executive shall
not be made without the prior written consent of Executive. Nothing in the
paragraph shall obligate the Corporation to institute a stock option
program or award options to Executive; however, the Corporation and
Executive currently contemplate that Executive shall be entitled to
receive such options.
(e) VACATION. Executive shall be entitled to four (4) weeks of paid
vacation per fiscal year (with the vacation for any partial year being
prorated). Any vacation not used in any fiscal year may not be carried
forward to any subsequent fiscal year.
(f) BUSINESS EXPENSES. If Executive complies with the policies for
reimbursement or advance of business expenses established from time to
time by the Board of Directors, the Corporation shall pay all reasonable
expenses incurred by Executive directly related to conduct of the business
of the Corporation including, without limitation, the cost of Executive's
monthly cellular phone expenses; the cost of Executive's monthly fee for
Internet access from his home computer; and the cost of any additional
products or services that will be used by Executive for his home office
and approved in advance by the Board of Directors of the Corporation.
6. TERMINATION. This Agreement shall or may be terminated, as the case may
be, upon the terms and conditions hereinafter provided:
(a) VOLUNTARY TERMINATION. This Agreement shall be considered
voluntarily terminated by the parties if Executive or the Corporation
shall have given written notice to the other of their intention not to
renew this Agreement for any subsequent year after the Initial Term, such
notice to be delivered at least ninety (90) days prior to the last day of
the Initial Term or any renewal Term.
(b) INVOLUNTARY TERMINATION. The Corporation may terminate this
Agreement upon notice in writing to Executive (or his personal
representative) in any of the following events:
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(i) Upon the death of Executive, in which case this Agreement
immediately shall be terminated; provided such termination shall not
prejudice any benefits payable to Executive's spouse or
beneficiaries which are fully vested as of the date of Executive's
death.
(ii) If Executive becomes "permanently disabled," as
hereinafter defined, in which case this Agreement immediately shall
be terminated; provided such termination shall not prejudice any
benefits payable to Executive or Executive's spouse or beneficiaries
which are fully vested as of the date that Executive becomes
permanently disabled.
(1) For purposes of this Agreement, Executive shall be
considered "permanently disabled" when a qualified medical
doctor mutually acceptable to the Corporation and Executive or
his personal representative shall have certified in writing
that: (i) he is unable because of a medically determinable
physical or mental disability to perform substantially all of
his duties hereunder for more than one hundred eighty (180)
calendar days measured from the last full day of work or (ii)
by reason of mental or physical disability, it is unlikely
that he will be able, within one hundred eighty (180) calendar
days, to resume substantially all business duties and
responsibilities in which he was previously engaged and
otherwise discharge his duties under this Agreement.
(iii) In the event of the liquidation, dissolution or
discontinuance of business by the Corporation in any manner or the
filing of any petition by or against the Corporation under any
federal or state bankruptcy or insolvency laws, which petition shall
not be dismissed within sixty (60) days after filing; provided such
termination shall not prejudice Executive's rights as a shareholder
or a creditor of the Corporation.
(iv) Executive's employment with the Corporation shall be
deemed to be "constructively terminated" if, after a Change in
Control (as defined below) (1) Executive's principal place of
business as an employee of the Corporation has been moved more
than twenty-five (25) miles from Chapel Hill, North Carolina;
or (2) any part of Executive's total annual compensation
package has been decreased without his consent; or (3)
Executive is notified by the Corporation that he will not be
retained upon the same terms and conditions as provided in
this Agreement; or (4) Executive has been demoted to a lesser
position than provided in Section 1 of this Agreement;
provided however, that Executive's employment with the
Corporation shall not be deemed to be "constructively
terminated" unless, within a reasonable time after learning of
the action described herein as the basis for a constructive
termination, Executive shall advise the Corporation in writing
that he considers his employment with the Corporation to have
been constructively terminated pursuant to this
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Section 6(b)(iv) and the Corporation shall not have cured such
action within fifteen (15) days of such notice.
(1) For purposes of this Agreement, a "Change in
Control" of the Corporation shall be deemed to have occurred
if (i) any "person," or persons acting as a "group" (as such
terms are used in Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended), but excluding
any person that was a stockholder of the Corporation on the
date of the Agreement (a) becomes the beneficial owner,
directly or indirectly, of securities of the Corporation
representing 50% or more of the combined voting power of the
Corporation's then outstanding securities, or (b) acquires or
obtains the power, whether through share ownership, contract,
proxy, voting agreement or otherwise to vote more than 50% of
the combined voting power of the Corporation's outstanding
securities, or (ii) the Corporation or its stockholders
dispose of all or substantially all of the assets of the
Corporation. In no event shall an initial public offering of
the securities of the Corporation be deemed a "Change in
Control."
(v) At the election of the Corporation for "cause," as
hereinafter defined, immediately upon written notice to Executive.
"Cause" shall be determined by the Board of Directors and shall
mean:
(1) Any action that is illegal or not in good faith
which is materially detrimental to the interest and well-being
of the Corporation; or
(2) Any failure by Executive to fully disclose any
material conflict of interest he may have with the Corporation
in a transaction between the Corporation and any third party
which is materially detrimental to the interest and well-being
of the Corporation; or
(3) Any adverse act or omission by Executive (a) which
would be required to be disclosed pursuant to public
securities laws and (b) which would preclude the Corporation
or any entity affiliated with the Corporation from selling
securities under any Federal or state law or which would
disqualify the Corporation or any affiliated entity from any
exemption otherwise available to it, all of which are
materially detrimental to the interest and well-being of the
Corporation; or
(4) Any material breach of the terms of this Agreement
by Executive, or the failure of Executive to diligently and
properly perform his duties for the Corporation, such breach
or failure to be determined in the reasonable judgment of the
Board of Directors and which breach or failure is not
corrected within sixty (60) days after written notice of such
breach or failure by the Board of Directors; or
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(5) Any material failure by Executive to comply with the
reasonable policies and/or directives of the Board of
Directors, to the best of his abilities, which failure is not
corrected within sixty (60) days after written notice of such
failure has been given to Executive.
(vi) At the election of the Corporation "without cause" upon
ninety (90) days written notice to Executive. At any time during
such ninety (90) day period, the Corporation may terminate
Executive's services to the Corporation subject to the payment by
the Corporation of Executive's salary and benefits for the remainder
of such ninety (90) day period and the severance pursuant to Section
7 hereof.
7. SALARY UPON TERMINATION; SEVERANCE. Except as specified below, upon
termination of Executive's employment with the Corporation, Executive shall be
paid all salary accrued and owing to Executive upon the termination date. Upon
termination of Executive's employment by the Corporation (other than termination
by the Corporation permitted by Section 6(b)(i), 6(b)(ii), 6(b)(iii), or
6(b)(v)), then Executive shall be entitled to receive, from the date of
termination, (a) his then-current base salary for a period of twelve (12) months
commencing on the date of termination, which will be payable in accordance with
the then-current payroll policies at such times as such salary would have been
paid had such termination not occurred; (b) all benefits payable in accordance
with this Agreement for a period of twelve (12) months commencing on the date of
termination; and (c) his pro-rata portion of the amount of any bonuses
established by the Board of Directors; provided that the targets or goals for
earning such bonuses are achieved on a pro-rata basis; and furthermore all
unexercisable stock options held by Executive shall fully accelerate and become
fully exercisable as of the date of termination.
8. Stock Purchase. Executive hereby subscribes for and purchases 650,000
shares of the common stock of the Corporation, par value $0.01 per share, at the
price of $0.10 per share. The purchase price for such shares shall be evidenced
by a Demand Promissory Note made and delivered by Executive to the Corporation
in the form attached hereto as Exhibit B.
9. CONFIDENTIALITY AND COVENANT NOT TO COMPETE.
(a) Confidentiality. Executive acknowledges that, in and as a result
of his employment by the Corporation, he has been and will be making use
of, acquiring and/or adding to confidential information of a special and
unique nature and value, including, without limitation, the Corporation's
trade secrets, products, services, systems, programs, procedures, manuals,
guides (as periodically updated or supplemented), confidential reports and
communications (including, without limitation, customer information,
technical information on the performance and reliability of the
Corporation's products or services and the development or acquisition of
future products or services) and lists of customers, as well as the nature
and type of the service rendered by the Corporation and the fees paid by
the Corporation's customers. Executive further acknowledges that any
information and materials received by the Corporation or Executive from
third parties in confidence (or subject to non-disclosure covenants) shall
be deemed to be and shall be confidential information within the meaning
of this Section 9(a). As a material inducement to the
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Corporation to continue to employ Executive and to pay to Executive
compensation as set forth herein for such services to be rendered to the
Corporation by Executive (it being understood and agreed by the parties
hereto that such compensation shall also be paid and received in
consideration hereof), Executive covenants and agrees that he shall not,
except with the prior written consent of the Board of Directors, at any
time during or following the termination of his employment with the
Corporation, directly or indirectly, divulge, use, reveal, report,
publish, transfer or disclose, for any purpose whatsoever, any of such
confidential information which has been obtained by or disclosed to him as
a result of his employment with the Corporation, including, without
limitation, any "Proprietary Information," as hereinafter defined. The
aforementioned obligation of confidentiality and non-disclosure shall not
apply when:
(i) Public Domain. The Proprietary Information disclosed to
Executive was in the public domain at the time of disclosure, or at
any time after disclosure has become a part of the public domain by
publication or otherwise through sources other than Executive,
directly or indirectly, and without fault on the part of Executive
in failing to keep such information confidential; or
(ii) Requirement of Law or Order. Disclosure is required by
law or court order, provided Executive gives the Corporation prior
written notice promptly upon learning that such disclosure is sought
so that the Corporation may intervene; or
(iii) Agreement. Disclosure is made with the prior written
agreement of an authorized officer of the Corporation or the Board
of Directors; or
(iv) Prior Information. The information was in Executive's
possession prior to the Effective Date, as shown by written records
in existence prior to the Effective Date; or
(v) Third Party Disclosure. The Proprietary Information is
lawfully disclosed to Executive after the termination of his
employment by a third party who is under no obligation of
confidentiality to the Corporation with respect to such information;
or
(vi) Independently Developed. Such information is
independently developed by Executive subsequent to the termination
of his employment with the Corporation, as demonstrated by written
records of Executive which are contemporarily maintained.
(b) COVENANT NOT TO COMPETE. It is recognized and understood by the
parties hereto that Executive, through his association with the
Corporation as an employee, has and shall acquire a considerable amount of
knowledge and goodwill with respect to the business of the Corporation,
which knowledge and goodwill are extremely valuable to the Corporation and
which would be extremely detrimental to the Corporation if used by
Executive to compete with the Corporation. It is, therefore, understood
and agreed by the parties hereto that, because of the nature of the
business of the Corporation, it is necessary
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to afford fair protection to the Corporation from such unfair
competition by Executive. Consequently, as material inducement to
employ Executive in the aforementioned position, Executive covenants
and agrees to the following:
(i) that at any time while engaged as an employee of the
Corporation and for a period of one (1) year following his
termination, he will not, directly or indirectly, with or through
any family member or former director, officer or employee of the
Corporation, or acting alone or as a director, employee, agent,
consultant, member of a partnership, firm, corporation or other
entity or as a holder of more than 5% of any security of any class
of any corporation or other business entity:
(1) engage anywhere in the world (the "Noncompetition
Area") in any business related to (i) the development and
marketing of software for conducting auctions and other
similar interactive sales methods and (ii) maintenance,
integration, customization, and other services related to such
products or (iii) such other business then being actively
pursued or reasonably anticipated to be pursued by the
Corporation at the time of such termination; or
(2) interfere with, or seek to interfere with, the
relationship between the Corporation and any affiliate of the
Corporation with the following: (a) any of the employees of
such entities; (b) any of the customers of such entities then
existing or existing at any time within three years prior to
termination of Executive's employment with the Corporation; or
(c) any of the suppliers of such entities then existing or
existing at any time within five (5) years prior to
termination of Executive's employment with the Corporation; or
(3) directly or indirectly recruit or hire any person
who is or had been in the prior three (3) months an employee
of the Corporation or any affiliate of the Corporation or
induce or attempt to induce any employee of the Corporation or
any affiliate of the Corporation to terminate his or her
employment with, or otherwise cease his or her relationship
with, the Corporation or any affiliate of the Corporation.
(ii) In the event that paragraph 9(b)(i)(1) shall be
determined by a court of competent jurisdiction to define too broad
a territory to be enforceable , then the Noncompetition Area shall
be the continents of Europe, Asia, North America and South America.
(iii) In the event that paragraphs 9(b)(i)(1) and 9(b)(ii)
shall be determined by a court of competent jurisdiction to define
too broad a territory to be enforceable, then the Noncompetition
Area shall be the continents of North America and South America.
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(iv) In the event that paragraphs 9(b)(i)(1), 9(b)(ii) and
9(b)(iii) shall be determined by a court of competent jurisdiction
to define too broad a territory to be enforceable, then the
Noncompetition Area shall be the United States of America.
(v) In the event that paragraphs 9(b)(i)(1), 9(b)(ii),
9(b)(iii) and 9(b)(iv) shall be determined by a court of competent
jurisdiction to define too broad a territory to be enforceable, the
Noncompetition Area shall be each state in which the Corporation has
sold any products to any customer;
(vi) In the event that paragraphs 9(b)(i)(1), 9(b)(ii),
9(b)(iii), 9(b)(iv) and 9(b)(v) shall be determined by a court of
competent jurisdiction to define too broad a territory to be
enforceable, the Noncompetition Area shall be the states of
California, Florida, Georgia, New York, North Carolina, South
Carolina, Texas and Virginia;
(vii) In the event that paragraphs 9(b)(i)(1), 9(b)(ii),
9(b)(iii), 9(b)(iv), 9(b)(v) and 9(b)(vi) shall be determined by a
court of competent jurisdiction to define too broad a territory to
be enforceable, the Noncompetition Area shall be the state of North
Carolina.
10. DEFINITION OF PROPRIETARY INFORMATION. For purposes of this Agreement,
the term "Proprietary Information" shall mean all of the following materials and
information (whether or not reduced to writing and whether or not patentable or
protectable by copyright) which Executive receives, receives access to,
conceives of or develops, in whole or in part, as a direct or indirect result of
his employment with the Corporation, in the course of his employment with the
Corporation (in any capacity, whether executive, managerial, planning,
technical, sales, research, development or otherwise) or through the use of any
of the Corporation's facilities or resources:
(a) Products and any related goods and any and all future products
derived therefrom;
(b) With respect to the items described in Section 9(a) above, all
hardware and software relating thereto; all source and object codes to
such hardware and software; all specifications, design concepts, documents
and manuals; all security systems relating to the services or procedures,
including, without limitation, software security systems;
(c) Trade secrets, processes, marketing techniques, software
programs, marketing plans, formulae, data, mailing lists, purchasing
information, price lists, pricing policies, quoting procedures, financial
information, customer and prospect names and requirements, customer data,
customer site information, pricing strategies and other materials or
information relating to the manner in which the Corporation does business;
(d) Discoveries, concepts and ideas, whether or not patentable or
protectable by copyright, including, without limitation, the nature and
results of research and development
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activities, technical information on product or program performance and
reliability, processes, formulas, techniques, "know-how," source codes,
object codes, designs, drawings and specifications;
(e) Any other materials or information related to the business or
activities of the Corporation which are not generally known to others
engaged in similar businesses or activities;
(f) Any other materials or information that has been created,
discovered or developed, or otherwise become known to the Corporation
which has commercial value in the business in which the Corporation is
engaged; and
(g) All ideas which are derived from or relate to Executive's access
to or knowledge of any of the above-enumerated materials and information.
Failure to xxxx any of the Proprietary Information as confidential shall
not affect its status as Proprietary Information under the terms of this
Agreement.
11. OWNERSHIP OF INFORMATION.
(a) Executive hereby assigns to the Corporation all of Executive's
right, title and interest in any idea (whether or not patentable or
protectable by copyright), invention, computer software program or other
computer-related equipment or technology, conceived or developed in whole
or in part, or in which Executive may have aided development, while
employed by the Corporation, including, without limitation, any
Proprietary Information. If any one or more of the aforementioned are
deemed in any way to fall within the definition of "work made by hire," as
such term is defined in 17 U.S.C. Section 101, such work shall be
considered "work made for hire," copyright of which shall be owned solely
by, or assigned or transferred completely and exclusively to the
Corporation. Executive agrees to execute all documents, agreements, and
all other instruments and to do all other things reasonably requested by
the Corporation (both during and after Executive's employment with the
Corporation) in order to more fully vest in the Corporation all ownership
rights in those items thereby transferred by Executive to the Corporation.
Executive further agrees to disclose immediately to the Corporation all
Proprietary Information conceived of or developed in whole or in part by
him during the term of his employment with the Corporation and to assign
to the Corporation any right, title or interest he may have in such
Proprietary Information.
(b) Notwithstanding anything in this Agreement to the contrary, the
obligation of Executive to assign or offer to assign his rights in an
invention to the Corporation shall not extend or apply to an invention
that Executive developed entirely on his own time without using the
Corporation's equipment, supplies, facility or trade secret information
unless such invention (i) relates to the Corporation's business or actual
or demonstrably anticipated research or development, or (ii) results from
any work performed by Executive for the Corporation. Executive shall bear
the burden of proof in establishing that his invention qualifies for
exclusion under this Section 11(b). With respect to Section 11(b), it
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is agreed and acknowledged that during Executive's employment, the
Corporation, with the concurrence of its Board of Directors and consistent
with the Corporation's mission, may enter other lines of business, which
are related or unrelated to its current lines of business, in which case
this Agreement would be expanded to cover such new lines of business.
12. INDEMNIFICATION.
(a) Executive agrees to indemnify and hold harmless the Corporation,
its directors, officers, agents and employees against any liabilities and
expenses, including amounts paid in settlement, incurred by any of them in
connection with any claim by any of Executive's prior employers that the
termination of Executive's employment with such employer, Executive's
employment by the Corporation, or use of any of Executive's skills and
knowledge by the Corporation is a violation of contract or law.
(b) The Corporation shall defend, indemnify, hold harmless, and pay
defense costs, liabilities, and expenses, including amounts paid in
settlement for Executive resulting from his actions as an officer,
director or employee of the Corporation to the fullest extent permitted by
law; provided that, such actions were not taken by Executive in bad faith.
13. EXECUTIVE REPRESENTATIONS.
(a) Executive represents that his performance of all of the terms of
this Agreement and as an employee does not and will not breach any
agreement to keep in confidence proprietary information acquired by
Executive in confidence or in trust prior to Executive's employment by the
Corporation. Executive represents that he has not entered into, and agrees
not to enter into, any agreement either oral or written in conflict
herewith.
(b) Executive understands as part of the consideration for this
Agreement and for Executive's employment or continued employment by the
Corporation, that Executive has not brought and will not bring with
Executive to the Corporation, or use in the performance of Executive's
responsibilities for the Corporation, any materials or documents of a
former employer which are not generally available to the public or which
did not belong to Executive prior to his employment with the Corporation,
unless Executive has obtained written authorization from the former
employer or other owner for their possession and use and provided the
Corporation with a copy thereof.
(c) Executive understands that during his employment for the
Corporation he is not to breach any obligation of confidentiality that
Executive has to a former employer or any other person or entity.
14. RECORDS. All notes, data, tapes, reference materials, sketches,
drawings, memoranda, models and records in any way relating to any of the
information referred to in Sections 9(a) (excluding (i) through (vi) thereof),
10 and 11(a) hereof (including without limitation, any Proprietary Information)
or to the Corporation's business shall belong exclusively to the Corporation and
Executive agrees to turn over to the Corporation all such materials and all
copies
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of such materials in his possession or then under his control at the request of
the Corporation or, in the absence of such request, upon the termination of
Executive's employment with the Corporation.
15. REASONABLENESS OF RESTRICTIONS.
(a) Executive has carefully read and considered the provisions of
Sections 9, 10, and 11 hereof and, having done so, agrees that the
restrictions set forth therein are fair and reasonable and are reasonably
required for the protection of the interests of the Corporation, its
officers, directors, stockholders and employees. Executive further
acknowledges that the nature of the Corporation's services are such that
its natural market is the entire world. Accordingly, Executive agrees that
the length of time, geographic area and any other restrictions contained
in this Agreement are reasonable to protect the legitimate interests of
the Corporation and do not unfairly restrict or penalize Executive.
(b) In the event that, notwithstanding the foregoing, any part of
the covenants set forth in Sections 9 through 14 hereof shall be held to
be invalid and unenforceable, the court so deciding may reduce or limit
the terms of such provision to allow such provision to be enforced.
16. WAIVER. Failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such
terms, covenants or conditions, nor shall any waiver or relinquishment of any
right or power granted hereunder at any particular time be deemed a waiver or
relinquishment of such rights or power at any time or times. Each party agrees
and acknowledges that nothing herein shall be construed to prohibit the other
party from pursuing any remedies available to it for breach or threatened breach
of this Agreement, including the recovery of money damages.
17. REMEDY. Executive understands and agrees that the Corporation may
suffer irreparable harm in the event that Executive breaches any of his
obligations under this Agreement and that monetary damages may be inadequate to
compensate the Corporation for such breach. Accordingly, Executive agrees that,
in the event of a breach or threatened breach by Executive of any of the
provisions of this Agreement, the Corporation, in addition to and not in
limitation of any other rights, remedies or damages available to the Corporation
at law or in equity, shall be entitled to seek a permanent injunction in order
to prevent or to restrain any such breach by Executive, or by Executive's
partners, agents, representatives, servants, employers, employees and/or any and
all persons directly or indirectly acting for or with him; provided such
injunction shall not affect Executive's ownership rights in the Corporation or
compensation earned or due Executive.
18. ATTORNEYS' FEES. In the event that it shall become necessary for
either party to retain the services of an attorney to enforce any terms under
this Agreement, the prevailing party, in addition to all other rights and
remedies hereunder or as provided by law, shall be entitled to reasonable
attorneys' fees and costs of suit.
19. SEVERABILITY. The provisions of this Agreement shall be deemed
severable, and the invalidity or unenforceability of any provision (or part
thereof) of this Agreement shall in no way affect the validity or enforceability
of any other provision (or remaining part thereof).
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20. GOVERNING LAW. This Agreement shall be governed by and construed
according to the laws of the State of North Carolina, without reference to the
choice of law provisions of such laws.
21. NOTICES. Any notice required to be given hereunder shall be sufficient
if in writing and sent by certified or registered mail, return receipt
requested, first-class postage prepaid, in the case of Executive, to his address
as shown on the Corporation's records, and in the case of the Corporation, to
its principal office in the State of North Carolina.
22. BENEFIT. This Agreement shall be binding upon and shall inure to the
benefit of each of the parties hereto, and to their respective heirs,
representatives, successors and permitted assigns. This Agreement shall be
binding upon the Corporation and upon any successor corporation. Executive may
not assign any of his rights or delegate any of his duties under this Agreement
without the prior written consent of the Board of Directors of the Corporation.
23. ENTIRE AGREEMENT. This Agreement and the several Exhibits hereto
contains the entire agreement and understandings by and between the Corporation
and Executive with respect to the covenants herein described, and no
representations, promises, agreements or understandings, written or oral, not
herein contained shall be of any force or effect. No change or modification
hereof shall be valid or binding unless the same is in writing and signed by the
parties hereto. No waiver of any provision of this Agreement shall be valid
unless the same is in writing and signed by the party against whom such waiver
is sought to be enforced; moreover, no valid waiver of any other provision of
this Agreement at any time shall be deemed a waiver of any other provision of
this Agreement at such time nor will it be deemed a valid waiver of such
provision at any other time.
24. CAPTIONS. The captions in this Agreement are for convenience only and
in no way define, bind or describe the scope or intent of this Agreement.
25. SURVIVAL OF COVENANTS. The provisions set forth in Sections 7 through
13 hereof shall survive the termination of this Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK. THE
SIGNATURES APPEAR ON THE FOLLOWING PAGE.]
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IN WITNESS WHEREOF, the parties hereto have executed this Executive
Employment Agreement and affixed their seals as of the Effective Date.
OPENSITE TECHNOLOGIES, INC.
By: /s/
______________________________
Name:
Title:
EXECUTIVE:
/s/ Xxx X. Xxxx
_________________________________
Xxx X. Xxxx
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EXHIBIT A
Executive's principal responsibilities are as follows: responsible for
day-to-day operations and as the Chief Executive Officer of the Corporation;
responsible, in consultation with the Board of Directors, for hiring the
management team; responsible, in consultation with the Board of Directors, for
overall profitability of the Corporation; reports to the Board of Directors of
the Corporation.
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