EXECUTION COPY
|__| Employee's Copy
|__| Company's Copy
LUMINANT WORLDWIDE CORPORATION
EMPLOYMENT AGREEMENT
To Xxxxx X. Xxxxx:
This Agreement establishes the terms of your employment with Luminant
Worldwide Corporation, a Delaware corporation (the "COMPANY"). Your employment
under this Agreement is contingent on effectiveness of the registration of the
Company's common stock with the Securities and Exchange Commission for the
Company's initial public offering ("IPO"). If the registration does not become
effective by December 31, 1999, this Agreement will not bind either you or the
Company, unless both you and the Company agree otherwise in writing. The Company
has been formed as a parent company to acquire a number of companies engaged in
the business of providing internet professional services and to make a public
offering of the Company's common stock.
EMPLOYMENT AND DUTIES You and the Company agree to your employment on the
terms contained herein as the President, Chief
Operating Officer and a Key Practice Leader. In
such position, you will report directly to the
Company's Chief Executive Officer or his delegate
(your "DIRECT REPORT"). (The Company's Board of
Directors (the "BOARD") or the Company's Chief
Executive Officer may change your Direct Report
from time to time in its or his discretion.)
During at least the first year after the
Effective Date, you will serve on an executive
committee of Key Practice Leaders that will
provide strategic and operational guidance to the
Company. You agree to perform whatever duties the
Board or your Direct Report may assign you from
time to time that are reasonably consistent with
your position as President, Chief Operating
Officer and Key Practice Leader. During your
employment, you agree to devote your full
business time, attention, and energies to
performing those duties (except as your Direct
Report otherwise agrees from time to time). You
agree to comply with the noncompetition, secrecy,
and other provisions of Exhibit A to this
Agreement.
TERM OF EMPLOYMENT Your employment under this Agreement begins as of
the effective date of registration for the IPO
(the "EFFECTIVE DATE"). Unless sooner terminated
under this Agreement, your employment ends at
6:00 p.m. Central Time on the third anniversary
of the Effective Date.
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The period running from the Effective Date to the
applicable date in the preceding sentence is the
"TERM."
Termination or expiration of this Agreement ends
your employment but does not end your obligation
to comply with Exhibit A or the Company's
obligation, if any, to make payments under the
PAYMENTS ON TERMINATION and SEVERANCE provisions
as specified below.
COMPENSATION
SALARY The Company will pay you an annual salary (the
"SALARY") from the Effective Date at the rate of
not less than $275,000 in accordance with its
generally applicable payroll practices. The Board
or your Direct Report will review your Salary
annually and consider you for increases.
BONUS The Board or its Compensation Committee, or if the
Board directs, your Direct Report will establish
annual bonus targets under which you will be
eligible for an annual bonus equal to up to 100%
of your Salary. It is the Company's good faith
intention to establish bonus targets for the
first year, in consultation with you, within 90
days following the Effective Date.
OPTIONS You will be eligible to receive options under the
Company's 1999 Equity Incentive Plan that will,
to the extent possible, qualify as incentive
stock options under the Internal Revenue Code.
Upon a Change of Control (as defined below), all
options will become fully exercisable. This
paragraph will modify any inconsistent provision
in any option agreement entered into by you and
the Company to the extent necessary to provide
for such acceleration. "Change of Control" for
this purpose means the occurrence of any one or
more of the following events after the Company's
IPO and prior to the termination or expiration of
this Agreement:
(i) a person, entity or group (other than the
Company, any Company subsidiary, any Company
benefit plan, or any underwriter temporarily
holding securities for an offering of such
securities) acquires ownership of more than
50% of the undiluted total voting power of
the Company's then outstanding securities
eligible to vote to elect members of the
Board of Directors ("Company Voting
Securities");
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(ii) the individuals that constitute the Board
of Directors of the Company immediately
prior to a proxy contest cease to constitute
at least a majority of the Board (excluding
any Board seat that is vacant or otherwise
unoccupied) immediately following the proxy
contest;
(iii) during any two year period, the
individuals that constitute the Board of
Directors at the beginning of the period
(the "INCUMBENT DIRECTORS") cease for any
reason to constitute at least a majority of
the Board (excluding any Board seat that is
vacant or otherwise unoccupied), provided
that any individuals approved for service on
the Board by a majority of Incumbent
Directors are treated as Incumbent Directors;
(iv) completion of a merger or consolidation
of the Company with or into any other
entity, unless the holders of the Company
Voting Securities outstanding immediately
before such completion, together with any
trustee or other fiduciary holding
securities under a Company benefit plan,
hold securities that represent immediately
after such merger or consolidation at least
50% of the combined voting power of the then
outstanding voting securities of either the
Company or the other surviving entity or its
parent;
(v) the stockholders of the Company approve
(a) a plan of complete liquidation or
dissolution of the Company or (b) an
agreement for the Company's sale or
disposition of all or substantially all the
Company's assets and such liquidation,
dissolution, sale or disposition is
completed; or
(vi) any other event which the Board of
Directors determines should constitute a
Change of Control.
EMPLOYEE BENEFITS While the Company employs you under this Agreement,
the Company will provide you with the same
benefits as it makes generally available from
time to time to the Company's senior executive
employees, as those benefits are amended or
terminated from time to time, including
participation in vacation policies (and payment
for accrued vacation) on a basis comparable to
that for senior management. Your participation in
the Company's benefit plans will be subject to
the terms of the applicable plan documents and
the Company's generally applied policies, and the
Company in its sole discretion may from time to
time adopt, modify, interpret, or discontinue
such plans or
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policies.
COMPENSATION REVIEW You will be eligible under a senior executive
compensation program that will consider you for
annual increases in Salary and that will
periodically review your progress in light of
targets and goals. The Company will review the
Compensation terms of this Agreement as part of a
comprehensive third party review of compensation
levels of the executive management of the Company
to be completed by December 31, 1999. This review
will consider you as part of the senior
management of the Company and as the Company's
President and Chief Operating Officer and will
treat you in a manner consistent with those
positions. The Company will make any adjustments
to compensation it considers appropriate based on
the review, and the adjustments will take effect
as of January 1, 2000 or such earlier date as the
Company finds practicable.
PLACE OF EMPLOYMENT Your principal place of employment will be at the
office at which you were employed by a
predecessor company on December 31, 1998 (or, if
later, on your starting date with the
predecessor) or such other offices as the Company
may establish from time to time and to which it
assigns you in its sole discretion, provided that
you will not be required to relocate more than 25
miles from your primary office as of December 31,
1998. You understand and agree that you must
travel from time to time for business reasons.
EXPENSES The Company will reimburse you for reasonable and
necessary travel and other business-related
expenses you incur for the Company in performing
your duties under this Agreement (with the travel
accommodations substantially comparable to that
of senior management of the Company). You must
itemize and substantiate all requests for
reimbursements. You must submit requests for
reimbursement in accordance with the policies and
practices of the Company.
NO OTHER EMPLOYMENT While the Company employs you, you agree that you
will not, directly or indirectly, provide
services to any person or organization for which
you receive compensation or otherwise engage in
activities that would conflict or interfere
significantly with your faithful performance of
your duties as an employee without the Board's
prior written consent. (This prohibition excludes
any work performed at the Company's direction.)
You may manage your personal investments, as long
as the management takes only minimal amounts of
time and is consistent with the provisions of the
NO CONFLICTS OF INTEREST
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Section and the NO COMPETITION Section in Exhibit
A.
You represent to the Company that you are not
subject to any agreement, commitment, or policy
of any third party that would prevent you from
entering into or performing your duties under
this Agreement, and you agree that you will not
enter into any agreement or commitment or agree
to any policy that would prevent or hinder your
performance of duties and obligations under this
Agreement, including Exhibit A.
NO CONFLICTS OF INTEREST You confirm that you have fully disclosed to the
Company, to the best of your knowledge, all
circumstances under which you, your spouse, and
other persons who reside in your household have
or may have a conflict of interest with the
Company. You further agree to fully disclose to
the Company any such circumstances that might
arise during your employment upon your becoming
aware of such circumstances. You agree to fully
comply with the Company's policy and practices
relating to conflicts of interest.
NO IMPROPER PAYMENTS You will neither pay nor permit payment of any
remuneration to or on behalf of any governmental
official other than payments required or
permitted by applicable law. You will comply
fully with the Foreign Corrupt Practices Act of
1977, as amended. You will not, directly or
indirectly,
make or permit any contribution, gift, bribe,
rebate, payoff, influence payment, kickback,
or other payment to any person or entity,
private or public, regardless of what form,
whether in money, property, or services
to obtain favorable treatment for
business secured,
to pay for favorable treatment for
business secured,
to obtain special concessions or for
special concessions already obtained, or
in violation of any legal requirement, or
establish or maintain any fund or asset
related to the Company that is not recorded
in the Company's books and records, or
take any action that would violate (or would
be part of a series of actions that would
violate) any U.S. law relating
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to international trade or commerce, including
those laws relating to trading with the
enemy, export control, and boycotts of
Israel or Israeli products (as is sought by
certain Arab countries).
TERMINATION Subject to the provisions of this section, you and
the Company agree that it may terminate your
employment, or you may resign, except that, if
you voluntarily resign, you must provide the
Company with 90 days' prior written notice
(unless the Board or your Direct Report has
previously waived such notice in writing or
authorized a shorter notice period).
FOR CAUSE The Company may terminate your employment for
"CAUSE" if you:
(i) commit a material breach of your
obligations or agreements under this
Agreement, including Exhibit A;
(ii) commit an act of gross negligence with
respect to the Company or otherwise act with
willful disregard for the Company's best
interests;
(iii) fail or refuse to perform any duties
delegated to you that are consistent with
the duties of similarly-situated senior
executive or are otherwise required under
this Agreement;
(iv) seize a corporate opportunity for
yourself instead of offering such
opportunity to the Company if within the
scope of the Company's or its subsidiaries'
business; or
(v) are convicted of or plead guilty or no
contest to a felony (or to a felony charge
reduced to misdemeanor), or, with respect to
your employment, to any misdemeanor (other
than a traffic violation) or, with respect
to your employment, commit either a material
dishonest act or common law fraud or
knowingly violate any federal or state
securities or tax laws.
Your termination for Cause will be effective
immediately upon the Company's mailing or written
transmission of notice of such termination.
Before terminating your employment for Cause
under clauses (i) - (iv) above, the Company will
specify in writing to you the nature of the act,
omission, refusal, or failure that it deems to
constitute Cause and, unless the Board or your
Direct Report reasonably concludes the situation
could not be corrected, give you 30 days after
you receive such notice to correct the situation
(and thus avoid termination for Cause),
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unless the Company agrees to extend the time for
correction. You agree that the Board or your
Direct Report will have the discretion to
determine in good faith whether your correction
is sufficient, provided that this decision does
not foreclose you from using the Dispute
Resolution provisions of Exhibit B.
WITHOUT CAUSE Subject to the provisions below under PAYMENTS ON
TERMINATION and SEVERANCE, the Company may
terminate your employment under this Agreement
before the end of the Term without CAUSE. The
Company agrees not to terminate your employment
without CAUSE during the first six months after
the Effective Date.
DISABILITY If you become "DISABLED" (as defined below), the
Company may terminate your employment. You are
"disabled" if you are unable, despite whatever
reasonable accommodations the law requires, to
render services to the Company for more than 90
consecutive days because of physical or mental
disability, incapacity, or illness. You are also
disabled if you are found to be disabled within
the meaning of the Company's long-term disability
insurance coverage as then in effect (or would be
so found if you applied for the coverage).
GOOD REASON You may resign for Good Reason with 45 days'
advance written notice. "GOOD REASON" for this
purposes means, without your consent, (i) the
Company materially breaches this Agreement or
(ii) the Company relocates your primary office by
more than 25 miles from your primary office as of
December 31, 1998.
You must give notice to the Company of your
intention to resign for Good Reason within 30
days after the occurrence of the event that you
assert entitles you to resign for Good Reason. In
that notice, you must state the condition that
you consider provides you with Good Reason and,
if such reason relates to clause (i) above, must
give the Company an opportunity to cure the
condition within 30 days after your notice.
Before or during the 30 day period, either party
may request mediation under Exhibit B to resolve
any such disputes, and, if so requested, the
parties agree to cooperate to arrange a prompt
mediation during no more than a 30 day period. If
the Company fails to cure the condition, your
resignation will be effective on the 45th day
after your notice (unless the Board has
previously waived such notice period in writing
or agreed to a shorter notice period or unless
mediation is proceeding in good faith), in which
case such resignation will become effective 15
days after the end of such mediation, if not
previously cured.
You will not be treated as resigning for GOOD
REASON if the
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Company already had given notice of termination
for CAUSE as of the date of your notice of
resignation.
DEATH If you die during the Term, the Term will end as of
the date of your death.
PAYMENTS ON If you resign or the Company terminates your
TERMINATION employment with or without Cause or because of
disability or death, the Company will pay you any
unpaid portion of your Salary pro-rated through
the date of actual termination (and any annual
bonuses already determined by such date but not
yet paid unless your employment is terminated
with CAUSE), reimburse any substantiated but
unreimbursed business expenses, pay any accrued
and unused vacation time (to the extent
consistent with the Company's policies), and
provide such other benefits as applicable laws or
the terms of the benefits require. Except to the
extent the law requires otherwise or as provided
in the SEVERANCE paragraph, neither you nor your
beneficiary or estate will have any rights or
claims under this Agreement or otherwise to
receive severance or any other compensation, or
to participate in any other plan, arrangement, or
benefit, after such termination or resignation.
If your employment never begins because the
Company does not complete its IPO, you
acknowledge that you have no rights to the
Severance set forth below or to any other
payments under or with respect to this Agreement.
SEVERANCE In addition to the foregoing payments, if before
the end of the Term, the Company terminates your
employment without CAUSE or you resign for GOOD
REASON, the Company will
pay you severance equal to your Salary, as
then in effect, for 18 months on the same
schedule as though you had remained employed
during such period, even though you are no
longer employed;
pay the after-tax premium cost for you to
receive any group health coverage the
Company must offer you under Section 4980B
of the Internal Revenue Code of 1986 ("COBRA
COVERAGE") for the period of such coverage
(unless the coverage is then provided under
a self-insured plan);
pay you, at the time the Company would
otherwise pay your annual bonus, your pro
rata share of the bonus for the year of your
termination, where the pro rata factor is
based on days elapsed in your year of
termination till date of termination over
365, less any portion of the
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bonus for the year of your termination already
paid; and
accelerate your options such that any options
that would become exercisable within the six
months after your date of termination or
resignation will become exercisable as a
result of your termination or resignation
(and will expire in accordance with the
option's terms within 90 days after such
date).
You are not required to mitigate amounts payable
under the SEVERANCE paragraph by seeking other
employment or otherwise, nor must you return to
the Company amounts earned under subsequent
employment.
EXPIRATION Expiration of this Agreement, whether because of
notice of non-renewal or otherwise, does not
constitute termination without CAUSE nor provide
you with GOOD REASON and does not entitle you to
SEVERANCE, unless the Company's general severance
practices entitle you to severance in that
situation. If you remain employed at the end of
the Term and your employment then ends as a
result of expiration of the Agreement, the
Company will pay you severance equal to your
Salary, as then in effect, for 12 months on the
same schedule as though you had remained employed
during such period, even though you are no longer
employed, which payments you agree compensate you
for the restrictions under Exhibit A upon
contract expiration.
ASSIGNMENT The Company may assign or otherwise transfer this
Agreement and any and all of its rights, duties,
obligations, or interests under it to
any of the affiliates or subsidiaries of the
Company or
to any business entity that at any time by
merger, consolidation, or otherwise acquires
all or substantially all of the Company's
stock or assets or to which the Company
transfers all or substantially all of its
assets.
Upon such assignment or transfer, any such business
entity will be deemed to be substituted for the
Company for all purposes (except that the Company
will remain secondarily liable if it transfers
this Agreement to a subsidiary). You agree that
assignment or transfer does not constitute
entitle you to Severance. This Agreement binds
and benefits the Company, its successors or
assigns, and your heirs and the personal
representatives of your estate. Without the
Board's or your
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Direct Report's prior written consent, you may not
assign or delegate this Agreement or any or all
rights, duties, obligations, or interests under
it.
SEVERABILITY If the final determination of an arbitrator or a
court of competent jurisdiction declares, after
the expiration of the time within which judicial
review (if permitted) of such determination may
be perfected, that any term or provision of this
Agreement, including any provision of Exhibit A,
is invalid or unenforceable, the remaining terms
and provisions will be unimpaired, and the
invalid or unenforceable term or provision will
be deemed replaced by a term or provision that is
valid and enforceable and that comes closest to
expressing the intention of the invalid or
unenforceable term or provision.
AMENDMENT; WAIVER Neither you nor the Company may modify, amend, or
waive the terms of this Agreement other than by a
written instrument signed by you and an executive
officer of the Company duly authorized by the
Board. Either party's waiver of the other party's
compliance with any provision of this Agreement
is not a waiver of any other provision of this
Agreement or of any subsequent breach by such
party of a provision of this Agreement.
WITHHOLDING The Company will reduce its compensatory payments
to you for withholding and FICA taxes and any
other withholdings and contributions required by
law. The Company will, if reasonably practicable,
credit you with the FICA and unemployment tax
withholdings you incurred in 1999 before the
Effective Date.
GOVERNING LAW The laws of the State of Texas (other than its
conflict of laws provisions) govern this Agreement.
NOTICES Notices must be given in writing by personal
delivery, by certified mail, return receipt
requested, by telecopy, or by overnight delivery.
You should send or deliver your notices to the
Company's corporate headquarters. The Company
will send or deliver any notice given to you at
your address as reflected on the Company's
personnel records. You and the Company may change
the address for notice by like notice to the
others. You and the Company agree that notice is
received on the date it is personally delivered,
the date it is received by certified mail, the
date of guaranteed delivery by the overnight
service, or the date the fax machine confirms
effective transmission.
SUPERSEDING EFFECT This Agreement supersedes any prior oral or written
employment, severance, option, or fringe benefit
agreements
Employment Agreement with Xxxxx X. Xxxxx Xxxx 10 of 22
between you and the Company, other than with
respect to your eligibility for generally
applicable employee benefit plans. This Agreement
supersedes all prior or contemporaneous
negotiations, commitments, agreements, and
writings with respect to the subject matter of
this Agreement (other than the Agreement and Plan
of Organization dated as of June 1, 1999). All
such other negotiations, commitments, agreements,
and writings will have no further force or
effect; and the parties to any such other
negotiation, commitment, agreement, or writing
will have no further rights or obligations
thereunder.
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If you accept the terms of this Agreement, please sign in the space indicated
below. We encourage you to consult with any advisors you choose.
LUMINANT WORLDWIDE CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxxxx X. Xxxxxx
Chief Executive Officer
I accept and agree to the terms of employment set forth in this Agreement:
/s/ Xxxxx X. Xxxxx
----------------------------
Xxxxx X. Xxxxx
Dated:
----------------------
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EXHIBIT A
NO COMPETITION You agree to the provisions of this Exhibit A in
consideration of (i) your employment by the Company
and salary and benefits under this Agreement and the
training you will receive in connection with such
employment and (ii) the Company's acquisition of
your prior employer, and you agree that Exhibit A
should be considered ancillary to the agreement by
which that employer was acquired or otherwise became
part of the Company or a subsidiary (the "ACQUISITION
AGREEMENT"). While the Company (or its successor or
transferee) employs you and to the end of the
Restricted Period (as defined below), you agree as
follows:
You will not, directly or indirectly, be employed
by, lend money to, or engage in any Competing
Business within the Market Area (each as defined
below). That prohibition includes, but is not
limited to, acting, either singly or jointly or as
agent for, or as an employee of or consultant to,
any one or more persons, firms, entities, or
corporations directly or indirectly (as a director,
independent contractor, representative, consultant,
member, or otherwise) that constitutes such a
Competing Business. You also will not invest or hold
equity or options in any Competing Business, provided
that you may own up to 3% of the outstanding capital
stock of any corporation that is actively publicly
traded without violating this NO COMPETITION
covenant, so long as you have no involvement beyond
passive investing in such business and you comply
with the second sentence of this paragraph.
If, during the Restricted Period, you are offered
and want to accept employment with a business that
engages in activities similar to the Company's, you
will inform your Direct Report in writing of the
identity of the business, your proposed duties with
that business, and the proposed starting date of
that employment. You will also inform that business
of the terms of this Exhibit A. The Company will
analyze the proposed employment and make a good
faith determination as to whether it would threaten
the Company's legitimate competitive interests. If
the Company determines that the proposed employment
would not pose an unacceptable threat to its
interests, the Company will notify you that it does
not object to the employment.
You acknowledge that, during the portion of the
Restricted Period that follows your employment, you
may engage in any business activity or gainful
employment of any type and in any place except as
described above. You acknowledge that you
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will be reasonably able to earn a livelihood without
violating the terms of this Agreement.
You understand and agree that the rights and
obligations set forth in this NO COMPETITION Section
will continue and will survive through the
Restricted Period.
DEFINITIONS
COMPETING BUSINESS COMPETING BUSINESS means any service or product of any
person or organization other than the Company and
its successors, assigns, or subsidiaries
(collectively, the "COMPANY GROUP") that competes
with any service or product of the Company Group
provided by any member of the Company Group during
your employment. COMPETING BUSINESS includes any
enterprise engaged in the formation or operation of
internet professional services firms that provide
strategic, interactive design and technical business
services, information technology and interactive
business consulting, and other related services to
assist clients in integrating and maintaining their
electronic commerce capabilities.
MARKET AREA The Market Area consists of the United States and
Canada. You agree that the Company provides services
both at its facilities and at the locations of its
customers or clients and that, by the nature of its
business, it operates globally.
RESTRICTED PERIOD For purposes of this Agreement, the RESTRICTED
PERIOD ends at the first anniversary of the date
your employment with the Company Group ends for any
reason, provided that the end of the RESTRICTED
PERIOD does not shorten any restrictions to which
you are bound by the Acquisition Agreement.
NO INTERFERENCE; During the Restricted Period, you agree that you will
NO SOLICITATION not, directly or indirectly, whether for yourself or
for any other individual or entity (other than the
Company or its affiliates or subsidiaries),
intentionally
solicit any person or entity who is, or was,
within the 24 months preceding your date of
termination or resignation, a customer, prospect
(with respect to which any member of the Company
Group has incurred substantial costs or with
which you have been involved), or client of the
Company Group within the Market Area, with the
24 month period reduced to 12 months for
prospects with which you have not been involved;
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hire away or endeavor to entice away from the
Company Group any employee or any other person
or entity whom the Company Group engages to
perform services or supply products and
including, but not limited to, any independent
contractors, consultants, engineers, or sales
representatives or any contractor,
subcontractor, supplier, or vendor; or
hire any person whom the Company Group employs or
employed within the prior 12 months.
SECRECY
PRESERVING COMPANY Your employment with the Company under and, if
CONFIDENCES applicable, before this Agreement (with a predecessor
to a member of the Company Group), has given and
will give you access to Confidential Information (as
defined below). You acknowledge and agree that
using, disclosing, or publishing any Confidential
Information in an unauthorized or improper manner
could cause the Company or Company Group to incur
substantial loss and damages that could not be
readily calculated and for which no remedy at law
would be adequate. Accordingly, you agree with the
Company that you will not at any time, except in
performing your employment duties to the Company or
the Company Group under this Agreement (or with the
Board's or your Direct Report's prior written
consent), directly or indirectly, use, disclose, or
publish, or permit others not so authorized to use,
disclose, or publish any Confidential Information
that you may learn or become aware of, or may have
learned or become aware of, because of your prior or
continuing employment, ownership, or association
with the Company or the Company Group or any of
their predecessors, or use any such information in a
manner detrimental to the interests of the Company
or the Company Group.
PRESERVING OTHERS' You agree not to use in working for the Company Group
CONFIDENCES and not to disclose to the Company Group any trade
secrets or other information you do not have the
right to use or disclose and that the Company Group
is not free to use without liability of any kind.
You agree to promptly inform the Company in writing
of any patents, copyrights, trademarks, or other
proprietary rights known to you that the Company or
the Company Group might violate because of
information you provide.
CONFIDENTIAL "CONFIDENTIAL INFORMATION" includes, without
INFORMATION limitation, information that the Company or the
Company Group has not previously disclosed to the
public or to the trade with respect to
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the Company's or the Company Group's present or
future business, including its operations, services,
products, research, inventions, discoveries, drawings,
designs, plans, processes, models, technical
information, facilities, methods, trade secrets,
copyrights, software, source code, systems, patents,
procedures, manuals, specifications, any other
intellectual property, confidential reports, price
lists, pricing formulas, customer lists, financial
information (including the revenues, costs, or
profits associated with any of the Company's or the
Company Group's products or services), business
plans, lease structure, projections, prospects,
opportunities or strategies, acquisitions or
mergers, advertising or promotions, personnel
matters, legal matters, any other confidential and
proprietary information, and any other information
not generally known outside the Company or the
Company Group that may be of value to the Company or
the Company Group but, notwithstanding anything to
the contrary, excludes any information already
properly in the public domain. "CONFIDENTIAL
INFORMATION" also includes confidential and
proprietary information and trade secrets that third
parties entrust to the Company or the Company Group
in confidence.
You understand and agree that the rights and
obligations set forth in this SECRECY Section will
continue indefinitely and will survive termination
of this Agreement and your employment with the
Company or the Company Group.
EXCLUSIVE PROPERTY You confirm that all Confidential Information is and
must remain the exclusive property of the Company or
the relevant member of the Company Group. Any office
equipment (including computers) you receive from the
Company Group in the course of your employment and
all business records, business papers, and business
documents you keep or make, whether on digital media
or otherwise, in the course of your employment by
the Company relating to the Company or any member of
the Company Group must be and remain the property of
the Company or the relevant member of the Company
Group. Upon the termination of this Agreement with
the Company or upon the Company's request at any
time, you must promptly deliver to the Company or to
the relevant member of the Company Group any such
office equipment (including computers) and any
Confidential Information or other materials (written
or otherwise) not available to the public or made
available to the public in a manner you know or
reasonably should recognize the Company did not
authorize, and any copies, excerpts, summaries,
compilations, records, or documents you made or that
came into your possession during your employment.
You agree that you will not, without the
Employment Agreement with Xxxxx X. Xxxxx Xxxx 16 of 22
Company's consent, retain copies, excerpts,
summaries, or compilations of the foregoing
information and materials. You understand and agree
that the rights and obligations set forth in this
EXCLUSIVE PROPERTY Section will continue
indefinitely and will survive termination of this
Agreement and your employment with the Company Group.
COPYRIGHTS, You agree that all records, in whatever media
DISCOVERIES, (including written works), documents, papers,
INVENTIONS, notebooks, drawings, designs, technical information,
AND PATENTS source code, object code, processes, methods or other
copyrightable or otherwise protected works you
conceive, create, make, invent, or discover that
relate to or result from any work you perform or
performed for the Company or the Company Group or
that arise from the use or assistance of the Company
Group's facilities, materials, personnel, or
Confidential Information in the course of your
employment (whether or not during usual working
hours), whether conceived, created, discovered,
made, or invented individually or jointly with
others, will be and remain the absolute property of
the Company (or another appropriate member of the
Company Group, as specified by the Company), as will
all the worldwide patent, copyright, trade secret,
or other intellectual property rights in all such
works. (All references in this section to the
Company include the members of the Company Group,
unless the Company determines otherwise.) You
irrevocably and unconditionally waive all rights,
wherever in the world enforceable, that vest in you
(whether before, on, or after the date of this
Agreement) in connection with your authorship of any
such copyrightable works in the course of your
employment with the Company Group or any predecessor.
Without limitation, you waive the right to be
identified as the author of any such works and
the right not to have any such works subjected to
derogatory treatment. YOU RECOGNIZE ANY SUCH WORKS
ARE "WORKS FOR HIRE" OF WHICH THE COMPANY IS THE
AUTHOR.
You will promptly disclose, grant, and assign
ownership to the Company for its sole use and
benefit any and all ideas, processes, inventions,
discoveries, improvements, technical information,
and copyrightable works (whether patentable or not)
that you develop, acquire, conceive or reduce to
practice (whether or not during usual working hours)
while the Company or the Company Group employs you.
You will promptly disclose and hereby grant and
assign ownership to the Company of all patent
applications, letters patent, utility and design
patents, copyrights, and reissues thereof or any
foreign equivalents thereof, that may at any time be
filed or granted for
Employment Agreement with Xxxxx X. Xxxxx Xxxx 17 of 22
or upon any such invention, improvement, or
information. In connection therewith:
You will, without charge but at the Company's
expense, promptly execute and deliver such
applications, assignments, descriptions, and
other instruments as the Company may consider
reasonably necessary or proper to vest title to
any such inventions, discoveries, improvements,
technical information, patent applications,
patents, copyrightable works, or reissues
thereof in the Company and to enable it to
obtain and maintain the entire worldwide right
and title thereto; and
You will provide to the Company at its expense
all such assistance as the Company may
reasonably require in the prosecution of
applications for such patents, copyrights, or
reissues thereof, in the prosecution or defense
of interferences that may be declared involving
any such applications, patents, or copyrights
and in any litigation in which the Company may
be involved relating to any such patents,
inventions, discoveries, improvements, technical
information, or copyrightable works or reissues
thereof. The Company will reimburse you for
reasonable out-of-pocket expenses you incur and
pay you reasonable compensation for your time if
the Company Group no longer employs you.
To the extent, if any, that you own rights to works,
inventions, discoveries, proprietary information,
and copyrighted or copyrightable works, or other
forms of intellectual property that are incorporated
in the work product you create for the Company
Group, you agree that the Company will have an
unrestricted, non-exclusive, royalty-free,
perpetual, transferable license to make, use, sell,
offer for sale, and sublicense such works and
property in whatever form, and you hereby grant such
license to the Company (and the Company Group).
This COPYRIGHTS, DISCOVERIES, INVENTIONS AND PATENTS
section does not apply to an invention or discovery
for which no equipment, supplies, facility or trade
secret information of the Company Group (including
its predecessors) was used and that was developed
entirely on your own time, unless (a) the invention
relates (i) directly to the business of the Company
Group, or (ii) the Company Group's actual or then
reasonably anticipated research or development, or
(b) the invention results from any work you
performed for the Company Group or any
Employment Agreement with Xxxxx X. Xxxxx Xxxx 18 of 22
predecessor.
MAXIMUM LIMITS If any of the provisions of Exhibit A are ever deemed
to exceed the time, geographic area, or activity
limitations the law permits, you and the Company
agree to reduce the limitations to the maximum
permissible limitation, and you and the Company
authorize a court or arbitrator having jurisdiction
to reform the provisions to the maximum time,
geographic area, and activity limitations the law
permits; PROVIDED, HOWEVER, that such reductions
apply only with respect to the operation of such
provision in the particular jurisdiction with
respect to which such adjudication is made.
INJUNCTIVE RELIEF Without limiting the remedies available to the Company,
you acknowledge
that a breach of any of the covenants in this
Exhibit A may result in material irreparable injury
to the Company and Company Group for which there
is no adequate remedy at law, and
that it will not be possible to measure damages
for such injuries precisely.
You agree that, if there is a breach or threatened
breach, the Company or any member of the Company
Group may be entitled to obtain a temporary
restraining order and/or a preliminary or permanent
injunction restraining you from engaging in
activities prohibited by any provisions of this
Exhibit A or such other relief as may be required to
specifically enforce any of the covenants in this
Exhibit A. The Company or any member of the Company
Group will, in addition to the remedies provided in
this Agreement, be entitled to avail itself of all
such other remedies as may now or hereafter exist at
law or in equity for compensation and for the
specific enforcement of the covenants contained in
this Agreement. Resort to any remedy provided for in
this Section or provided for by law will not prevent
the concurrent or subsequent employment of any other
appropriate remedy or remedies, or preclude the
Company's or the Company Group's recovery of
monetary damages and compensation. You also agree
that the Restricted Period or such longer period
during which the covenants hereunder by their terms
survive will extend for any and all periods for
which a court with personal jurisdiction over you
finds that you violated the covenants contained in
this Exhibit A.
Employment Agreement with Xxxxx X. Xxxxx Xxxx 19 of 22
EXHIBIT B
DISPUTE RESOLUTION
MEDIATION If either party has a dispute or claim relating to
this Agreement or their relationship and except as
set forth in ALTERNATIVES, the parties must first
seek to mediate the same before an impartial
mediator the parties mutually designate, and the
parties must equally share the expenses of such
proceeding (other than their respective attorneys'
fees). Subject to the mediator's schedule, the
mediation must occur within 45 days of either
party's written demand. However, in an appropriate
circumstance, a party may seek emergency equitable
relief from a court of competent jurisdiction
notwithstanding this obligation to mediate.
BINDING ARBITRATION If the mediation reaches no solution or the parties
agree to forego mediation, the parties will promptly
submit their disputes to binding arbitration before
one or more arbitrators (collectively or singly, the
"ARBITRATOR") the parties agree to select (or whom,
absent agreement, a court of competent jurisdiction
selects). The arbitration must follow applicable law
related to arbitration proceedings and, where
appropriate, the Commercial Arbitration Rules of the
American Arbitration Association.
ARBITRATION PRINCIPLES All statutes of limitations and substantive laws
applicable to a court proceeding will apply to this
proceeding. The Arbitrator will have the power to
grant relief in equity as well as at law, to issue
subpoenas duces tecum, to question witnesses, to
consider affidavits (provided there is a fair
opportunity to rebut the affidavits), to require
briefs and written summaries of the material
evidence, and to relax the rules of evidence and
procedure, provided that the Arbitrator must not
admit evidence it does not consider reliable. The
Arbitrator will not have the authority to add to,
detract from, or modify any provision of this
Agreement. The parties agree (and the Arbitrator
must agree) that all proceedings and decisions of
the Arbitrator will be maintained in confidence, to
the extent legally permissible, and not be made
public by any party or the Arbitrator without the
prior written consent of all parties to the
arbitration, except as the law may otherwise require.
Employment Agreement with Xxxxx X. Xxxxx Xxxx 20 of 22
DISCOVERY; EVIDENCE; The parties have selected arbitration to expedite the
PRESUMPTIONS resolution of disputes and to reduce the costs and
burdens associated with litigation. The parties
agree that the Arbitrator should take these concerns
into account when determining whether to authorize
discovery and, if so, the scope of permissible
discovery and other hearing and pre-hearing
procedures. The Arbitrator may permit reasonable
discovery rights in preparation for the arbitration,
provided that it should accelerate the scheduling of
and responses to such discovery so as not to
unreasonably delay the arbitration. Exhibits must be
marked and left with the Arbitrator until it has
rendered a decision. Either party may elect, at its
expense, to record the proceedings by audiotape or
stenographic recorder (but not by video). The
Arbitrator may conclude that the applicable law of
any foreign jurisdiction would be identical to that
of Texas on the pertinent issue(s), absent a party's
providing the Arbitrator with relevant authorities
(and copying the opposing party) at least five
business days before the arbitration hearing.
NATURE OF AWARD The Arbitrator must render its award, to the extent
feasible, within 30 days after the close of the
hearing. The award must set forth the material
findings of fact and legal conclusions supporting
the award. The parties agree that it will be final,
binding, and enforceable by any court of competent
jurisdiction. Where necessary or appropriate to
effectuate relief, the Arbitrator may issue
equitable orders as part of or ancillary to the
award. The Arbitrator must equitably allocate the
costs and fees of the proceeding and may consider in
doing so the relative fault of the parties. The
Arbitrator may award reasonable attorneys' fees to
the prevailing party to the extent a court could
have made such an award.
APPEAL The parties may appeal the award based on the
grounds allowed by statute, as well as upon the
ground that the award misapplies the law to the
facts, provided that such appeal is filed within the
applicable time limits law allows. If the award is
appealed, the court may consider the ruling,
evidence submitted during the arbitration, briefs,
and arguments but must not try the case DE NOVO. The
parties will bear the costs and fees associated with
the appeal in accordance with the arbitration award
or, in the event of a successful appeal, in
accordance with the court's final judgment.
Employment Agreement with Xxxxx X. Xxxxx Xxxx 21 of 22
ALTERNATIVES This DISPUTE RESOLUTION provision does not preclude
a party from seeking equitable relief from a court
(i) to prevent imminent or irreparable injury or
(ii) pending arbitration, to preserve the last
peaceable status quo, nor does it preclude the
parties from agreeing to a less expensive and faster
means of dispute resolution. It does not prevent the
Company from immediately seeking in court an
injunction or other remedy with respect to Exhibit A.
Employment Agreement with Xxxxx X. Xxxxx Xxxx 22 of 22
