Exhibit 10.11
XXXXXXX TECHNOLOGIES, INC.
EMPLOYEE AGREEMENT
In consideration and as a condition of my employment by Xxxxxxx
Technologies, Inc. (the "Company"), I agree as set forth below.
1. PROPRIETARY INFORMATION. I agree that all information, whether or not in
writing, concerning the Company's business, technology, business relationships
or financial affairs which the Company has not released to the general public
(collectively, "Proprietary Information") is and will be the exclusive property
of the Company. By way of illustration, Proprietary Information may include
information or material which has not been made generally available to the
public, such as: (a) CORPORATE INFORMATION, including plans, strategies,
methods, policies, resolutions, negotiations or litigation; (b) MARKETING
INFORMATION, including strategies, methods, customer identities or other
information about customers, prospect identities or other information about
prospects, or market analyses or projections; (c) FINANCIAL INFORMATION,
including cost and performance data, debt arrangements, equity structure,
investors and holdings, purchasing and sales data and price lists; (d)
OPERATIONAL AND TECHNOLOGICAL INFORMATION, including plans, specifications,
manuals, forms, templates, software, designs, procedures, formulas, discoveries,
inventions, improvements, concepts and ideas; and (e) PERSONNEL INFORMATION,
including personnel lists, reporting or organizational structure, resumes,
personnel data, compensation structure, performance evaluations and termination
arrangements or documents. Proprietary Information also includes information
received in confidence by the Company from its customers or suppliers or other
third parties.
2. RECOGNITION OF COMPANY'S RIGHTS. I will not, at any time, without the
Company's prior written permission, either during or after my employment,
disclose any Proprietary Information to anyone outside of the Company, or use or
permit to be used any Proprietary Information for any purpose other than the
performance of my duties as an employee of the Company. I will cooperate with
the Company and use my best efforts to prevent the unauthorized disclosure of
all Proprietary Information. I will deliver to the Company all copies of
Proprietary Information in my possession or control upon the earlier of a
request by the Company or termination of my employment.
3. RIGHTS OF OTHERS. I understand that the Company is now and may hereafter be
subject to non-disclosure or confidentiality agreements with third persons which
require the Company to protect or refrain from use of proprietary information. I
agree to be bound by the terms of such agreements in the event I have access to
such proprietary information.
4. COMMITMENT TO COMPANY; AVOIDANCE OF CONFLICT OF INTEREST. While an employee
of the Company, I will devote my full working time and efforts to the Company's
business, I will not engage in any other business activity that conflicts with
my duties to the Company and I will comply with the Company's policies and codes
of conduct and applicable law, always using my best efforts to promote the
highest standards of ethics and client service. I will advise the Chief
Executive Officer, the President or the managing partner of the Company or his
or her nominee at such time as any activity of either the Company or another
business presents me with a conflict of interest or the appearance of a conflict
of interest as an employee of the Company. I will take whatever action is
requested of me by the Company to resolve any conflict or appearance of conflict
which it finds to exist.
5. DEVELOPMENTS. I will make full and prompt disclosure to the Company of all
inventions, discoveries, designs, developments, methods, modifications,
improvements, processes, algorithms, databases, computer programs, formulae,
techniques, trade secrets, graphics or images, audio or visual works, and other
works of authorship (collectively "Developments"), whether or not patentable or
copyrightable, that are created, made, conceived or reduced to practice by me
(alone or jointly with others) or under my direction during the period of my
employment. I acknowledge that all work performed by me is on a "work for hire"
basis, and I hereby do assign and transfer, and will assign and transfer, to the
Company and its successors and assigns all my right, title and interest in all
Developments that (a) relate to the business of the Company or any customer of
or supplier to the Company or any of the products or services being researched,
developed or sold by the Company or which may be used with such products or
services; (b) result from tasks assigned to me by the Company; or (c) result
from the use of premises or personal property (whether tangible or intangible)
owned, leased or contracted for by the Company ("Company-Related Developments"),
and all related patents, patent applications, trademarks and trademark
applications, copyrights and copyright applications, and other intellectual
property rights in all countries and territories worldwide and under any
international conventions ("Intellectual Property Rights").
To preclude any possible uncertainty, I have set forth on EXHIBIT A
attached hereto a complete list of Developments that I have, alone or jointly
with others, conceived, developed or reduced to practice prior to the
commencement of my employment with the Company that I consider to be my property
or the property of third parties and that I wish to have excluded from the scope
of this Agreement ("Prior Inventions"). I have also listed on EXHIBIT A all
patents and patent applications in which I am named as an inventor, other than
those which have been assigned to the Company ("Other Patent Rights"). If no
such disclosure is attached, I represent that there are no Prior Inventions or
Other Patent Rights. If, in the course of my employment with the Company, I
incorporate a Prior Invention into a Company product, process or machine or
other work done for the Company, I hereby
grant to the Company a nonexclusive, royalty-free, irrevocable, worldwide
license (with the full right to sublicense) to make, have made, modify, use and
sell such Prior Invention. Notwithstanding the foregoing, I will not
incorporate, or permit to be incorporated, Prior Inventions in any
Company-Related Development without the Company's prior written consent.
This Agreement does not obligate me to assign to the Company any
Development which is developed entirely on my own time and does not relate to
the business efforts or research and development efforts in which, during the
period of my employment, the Company actually is engaged or reasonably would be
engaged, and does not result from the use of premises or equipment owned or
leased by the Company. However, I will also promptly disclose to the Company any
such Developments for the purpose of determining whether they qualify for such
exclusion. I understand that to the extent this Agreement is required to be
construed in accordance with the laws of any state which precludes a requirement
in an employee agreement to assign certain classes of inventions made by an
employee, this paragraph 5 will be interpreted not to apply to any invention
which a court rules and/or the Company agrees falls within such classes. I also
hereby waive all claims to any moral rights or other special rights which I may
have or may accrue in any Company-Related Developments.
6. DOCUMENTS AND OTHER MATERIALS. I will keep and maintain adequate and
current records of all Proprietary Information and Company-Related Developments
developed by me during my employment, which records will be available to and
remain the sole property of the Company at all times.
All files, letters, notes, memoranda, reports, records, data, sketches,
drawings, notebooks, layouts, charts, quotations and proposals, specification
sheets, or other written, photographic or other tangible material containing
Proprietary Information, whether created by me or others, which come into my
custody or possession, are the exclusive property of the Company to be used by
me only in the performance of my duties for the Company. Any property situated
on the Company's premises and owned by the Company, including, without
limitation, computers, disks and other storage media, filing cabinets or other
work areas, is subject to inspection by the Company at any time with or without
notice. In the event of the termination of my employment for any reason, I will
deliver to the Company all files, letters, notes, memoranda, reports, records,
data, sketches, drawings, notebooks, layouts, charts, quotations and proposals,
specification sheets, or other written, photographic or other tangible material
containing Proprietary Information, and other materials of any nature pertaining
to the Proprietary Information of the Company and to my work, and will not take
or keep in my possession any of the foregoing or any copies.
7. ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS. I will cooperate fully with
the Company, at the Company's expense, both during and after my employment with
the Company, with respect to the procurement, maintenance and enforcement of
Intellectual Property Rights in Company-Related Developments. I will sign all
papers, including, without limitation, copyright applications, patent
applications, declarations, oaths, assignments of priority rights, and powers of
attorney, which the Company may deem necessary or desirable in order to protect
its rights and interests in any Company-Related Development. If the Company is
unable, after reasonable effort, to secure my signature on any such papers, I
hereby irrevocably designate and appoint each officer of the Company as my agent
and attorney-in-fact to execute any such papers on my behalf, and to take any
and all actions as the Company may deem necessary or desirable in order to
properly assign to the Company all rights and interests in any such
Company-Related Development.
8. RESTRICTIONS ON ACTIVITIES. In order to protect the Company's Proprietary
Information, good will and client and employee relations, during my employment
and for a period of twelve (12) months following the termination of my
employment for any reason, I will not, directly or indirectly, whether as owner,
partner, shareholder, director, consultant, agent, employee, co-venturer or
otherwise:
- engage, participate or invest in any business activity anywhere in New
York, New Jersey, California, Connecticut, Florida and Oklahoma, or any
other state in the United States or Canada that develops or markets any
products, or performs any services, that are competitive with the products
or services of the Company, or products or services that the Company has
under development or that are the subject of active planning at any time
during my employment (a "Competitive Activity"); provided that this shall
not prohibit any investment by me in publicly traded stock of a company
representing less than five percent of the stock of such company; or
- other than for the benefit of the Company, call upon, solicit, or otherwise
attempt to divert or take away any of the customers or prospective
customers of the Company (or any persons or entities who were, within the
two (2) year period preceding the termination of my employment, customers
or prospective customers of the Company) in each case in furtherance,
directly or indirectly, of a Competitive Activity.
In addition, during the period of my employment and for a period of twelve (12)
months following termination of my employment for any reason, I will not,
directly or indirectly, hire any employees of the Company (or any persons who,
during the period of my employment, were employed by the Company) or solicit,
entice or attempt to persuade any employee of the Company to leave the services
of the Company for any reason. I acknowledge that if I violate any of the
provisions of this paragraph 8, the running of the time period of prohibited
activities shall be suspended and the running of such time period shall not
resume until I have ceased engaging in any such violation or pattern of
violations.
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9. PRIOR AGREEMENTS. I hereby represent that, except as I have fully disclosed
previously in writing to the Company, I am not bound by the terms of any
agreement with any previous employer or other party to refrain from using or
disclosing any trade secret or confidential or proprietary information in the
course of my employment with the Company or to refrain from competing, directly
or indirectly, with the business of such previous employer or any other party. I
further represent that my performance of all the terms of this Agreement as an
employee of the Company does not and will not breach any agreement to keep in
confidence proprietary information, knowledge or data acquired by me in
confidence or in trust prior to my employment with the Company. I will not
disclose to the Company or induce the Company to use any confidential or
proprietary information or material belonging to any previous employer or
others.
10. REMEDIES UPON BREACH. I understand that the restrictions contained in this
Agreement are necessary for the protection of the business and goodwill of the
Company and I consider them to be reasonable for such purpose. I acknowledge
that, particularly in light of my position and access within the firm, any
violation of these restrictions will substantially harm the firm that I have
joined to help build. Any breach of this Agreement is likely to cause the
Company substantial and irrevocable damage and therefore, in the event of such
breach, the Company, in addition to such other remedies which may be available
(including, without limitation and if applicable, the right to recover from me
any bonus monies previously paid to me that are subject to repayment to the
Company upon breach of this Agreement), will be entitled to specific performance
and other injunctive relief.
11. USE OF VOICE, IMAGE AND LIKENESS. I give the Company permission to use my
voice, image or likeness, with or without using my name, for the purposes of
advertising and promoting the Company, or for other purposes deemed appropriate
by the Company in its reasonable discretion, except to the extent expressly
prohibited by law.
12. PUBLICATIONS AND PUBLIC STATEMENTS. To ensure that the Company delivers a
consistent message about its products, services and operations to the public,
and further in recognition that even positive statements may have a detrimental
effect on the Company in certain securities transactions and other contexts, any
statement about the Company, or any material that relates to my work at the
Company and/or incorporates any Proprietary Information, that I seek to create,
publish or post during my period of employment, on any media accessible by the
public, including, but not limited to, electronic bulletin boards and
Internet-based chat rooms, shall be created, published or posted only in
accordance with policies and procedures established by the Company.
13. NO EMPLOYMENT OBLIGATION. I understand that this Agreement does not create
an obligation on the Company or any other person to continue my employment. I
acknowledge that, unless otherwise agreed in a formal written employment
agreement signed on behalf of the Company by an authorized officer, my
employment with the Company is at will and therefore may be terminated by the
Company or me at any time and for any reason.
14. SURVIVAL AND ASSIGNMENT BY THE COMPANY. I understand that all of my
obligations under this Agreement will continue in accordance with their express
terms regardless of any changes in my title, position, duties, salary,
compensation or benefits or other terms and conditions of employment. I further
understand that my obligations under this Agreement will continue following the
termination of my employment regardless of the manner of such termination and
will be binding upon my heirs, executors and administrators. The Company will
have the right to assign this Agreement to its affiliates, successors and
assigns. I expressly consent to be bound by the provisions of this Agreement for
the benefit of the Company or any parent, subsidiary or affiliate to whose
employ I may be transferred without the necessity that this Agreement be
resigned at the time of such transfer.
15. EXIT INTERVIEW. If and when I depart from the Company, I may be required to
attend an exit interview and sign an "Employee Exit Acknowledgement" to reaffirm
my acceptance and acknowledgement of the obligations set forth in this
Agreement. For the twelve (12) month period following termination of my
employment, I will notify the Company of any change in my address and of each
subsequent employment or business activity, including the name and address of my
employer or other post-Company employment plans and the nature of my activities.
16. DISCLOSURE TO FUTURE EMPLOYERS. During the twelve (12) month period
following termination of my employment, I will provide a copy of this Agreement
to any prospective employer, partner or coventurer prior to entering into an
employment, partnership or other business relationship with such person or
entity.
17. SEVERABILITY. In case any provisions (or portions thereof) contained in
this Agreement shall, for any reason, be held invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
the other provisions of this Agreement, and this Agreement shall be construed as
if such invalid, illegal or unenforceable provision had never been contained
herein. If, moreover, any one or more of the provisions contained in this
Agreement shall for any reason be held to be excessively broad as to duration,
geographical scope, activity or subject, it shall be construed by limiting and
reducing it, so as to be enforceable to the extent compatible with the
applicable law as it shall then appear.
18. INTERPRETATION. This Agreement will be deemed to be made and entered into
in the State of Connecticut, and will in all respects be interpreted, enforced
and governed under the laws of the State of Connecticut. I hereby agree to
consent to personal jurisdiction of the state and federal courts situated within
Connecticut for purposes of enforcing this Agreement, and waive any objection
that I might have to personal jurisdiction or venue in those courts.
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I UNDERSTAND THAT THIS AGREEMENT AFFECTS IMPORTANT RIGHTS. BY SIGNING
BELOW, I CERTIFY THAT I HAVE READ IT CAREFULLY AND AM SATISFIED THAT I
UNDERSTAND IT COMPLETELY.
IN WITNESS WHEREOF, the undersigned has executed this agreement as a sealed
instrument as of the date set forth below.
Signed: /s/ Xxxxx Xxxxxxx
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(Employee's full name)
Type or print name: Xxxxx Xxxxxxx
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Social Security Number: Date: 4/25/2005
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