EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement (the "AGREEMENT") is entered into effective as of May
9, 2002, between SoundView Technology Group, Inc., a Delaware corporation (the
"CORPORATION"), and Xxxxxx Xxxxx (the "EMPLOYEE").
W I T N E S S E T H:
The Corporation desires to confirm the continued employment of the Employee
in order to have the benefits of his expertise and knowledge. The Employee, in
turn, desires to continue his employment with the Corporation on the terms set
forth in this Agreement. The parties, therefore, enter into this Agreement to
establish the terms and conditions of the Employee's continued employment with
the Corporation.
In consideration of the mutual covenants and representations contained in
this Agreement, the Corporation and the Employee agree as follows:
1. EMPLOYMENT OF EMPLOYEE; DUTIES.
The Corporation agrees to employ the Employee, and the Employee agrees to
be employed by the Corporation, as a Managing Director and Head of Sales in the
Old Greenwich office of its subsidiary, SoundView Technology Corporation, for
the period specified in Section 2 (the "EMPLOYMENT PERIOD"), subject to the
terms and conditions of this Agreement. During the Employment Period, the
Employee shall report to the Chief Executive Officer or such other senior
executive as the Corporation may deem appropriate from time to time and he shall
assume such duties and responsibilities as may be properly assigned to him by
the Corporation.
2. EMPLOYMENT PERIOD. The Employment Period shall begin on the date of
this Agreement and shall continue until December 31, 2002.
3. DRAW. During the Employment Period, the Corporation shall pay the
Employee at a monthly rate equal to an annual draw of Two Hundred Thousand
Dollars ($200,000), which is a draw against the Bonus provided for in Section 4
(the "DRAW"). The Draw shall be payable in equal periodic installments which are
not less frequent than the periodic installments in effect for salaries of other
senior executives of the Corporation.
4. BONUS. For the period ending December 31, 2002, subject to the
conditions set forth in this Agreement, the Employee shall be entitled to a
bonus equal to (i) one percent (1%) of the Net Trading Revenue of SoundView
Technology Corporation and (ii), for those equity offerings in which SoundView
Technology Corporation participates as an underwriter or selected dealer, either
(a) 1/2% of selling concessions on lead or co-managed equity offerings or (b) 1%
of syndicate designations on all other equity offerings. (the "BONUS"). NET
TRADING REVENUE for purposes of determining the Bonus pursuant to this Section 4
is defined as gross
commissions less trading losses generated from the trading conducted by the
sales and trading departments of SoundView Technology Corporation for the period
commencing January 1, 2002 and ending December 31, 2002, provided, however, that
Net Trading Revenue shall not include selling concessions or syndicate
designations. Net Trading Revenue shall be determined by the Corporation using
the same method of accounting as it does for the preparation of its financial
statements and shall be calculated in order to permit the payment of the Bonus
on or before January 30, 2003. The determination of Net Trading Revenue, revenue
from selling concessions and syndicate designations by the Corporation shall be
conclusive and not subject to challenge. The Bonus is intended to be, and is
understood by Employee to be, an inducement to continued employment throughout
the Employment Period and until the Bonus is paid, which shall not be later than
when other bonuses are paid to the sales department or January 30, 2003,
whichever is earliest. For the avoidance of doubt, except for Draw and unless a
payment is made pursuant to Section 7 or a mid-year bonus is paid pursuant to
the next sentence, no money will be paid to the Employee for the Bonus unless
the Employee is a current employee of the Corporation on January 30, 2003.
Notwithstanding the foregoing, if the Compensation Committee of the Board of
Directors authorizes the payment of a mid-year bonus to the members of the Sales
department of SoundView Technology Corporation, Employee shall be paid a
mid-year Bonus, less Draw paid to date, at the same time and subject to the same
general conditions as the bonus payments to the members of the Sales department.
Thus, for example, if a mid-year bonus is paid based on the first six (6) months
of activity, with a 25% holdback, Employee shall be entitled to a payout of his
Bonus, less 25%, payable at the same time as other bonuses are paid. Any amounts
held back from the mid-year bonus, if any, shall be payable on January 30, 2003
as provided in this Section 4. Notwithstanding anything to the contrary
contained in this Section 4, if there is a Change of Control, as defined in
Section 7.3(e), prior to December 31, 2002, provided that Employee is still
employed by the Corporation, Employee shall be paid on or before January 30,
2003 a sum equal to the greater of (x) one million dollars ($1,000,000) or (y)
the Bonus, in each case less the amount of any Bonus paid during the course of
the year to Employee.
5. BENEFITS.
(a) In addition to and except for the matters governed by this
Agreement, the Employee shall be entitled to employee benefits and perquisites,
including but not limited to pension, deferred compensation plans, incentive,
stock options, group life insurance, disability, sickness and accident insurance
and health benefits under such plans and programs as provided to other Managing
Directors of the Corporation from time to time.
(b) The Employee shall be entitled to four (4) weeks paid vacation as
well as holidays, leave of absence and leave for illness and temporary
disability in accordance with the policies of the Corporation.
(c) The Employee shall be entitled to reimbursement for normal and
customary business expenses in accordance with the Company's policies for
expense reimbursement.
6. NON-DISCLOSURE; NON-COMPETITION
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6.1 EMPLOYEE NON-DISCLOSURE, NON-COMPETITION AND ASSIGNMENT OF INVENTIONS
AGREEMENT. As a condition to this Agreement, Employee agrees to execute and
comply with the terms and conditions of the "SoundView Technology Group, Inc.
Employee Non-Disclosure, Non-Competition and Assignment of Inventions Agreement"
attached as Exhibit 1.
6.2 CONFIDENTIALITY. Employee covenants and agrees to keep this Agreement
and its terms confidential and to not discuss or disclose the terms of this
Agreement or any of the discussions or correspondence relating thereto with any
past, present or future employees of the Corporation, any prospective
employer(s) or any representatives thereof. Notwithstanding the foregoing,
Employee may discuss the terms of this Agreement with his attorney, financial
advisors and immediate family members, provided he first informs such
individuals of their obligation to keep that information confidential.
7. TERMINATION.
7.1 TERMINATION BY THE CORPORATION.
(a) The Corporation may terminate the Employee's employment under
this Agreement without Cause (as defined in Section 7.1(b)), at any time by
giving notice thereof to the Employee. The Employment Period shall terminate as
of the date of such termination of employment.
(b) The Corporation may terminate the Employee's employment under
this Agreement for Cause at any time by notifying the Employee of such
termination. For all purposes of this Agreement, the Employment Period shall end
as of the date of such termination of employment. "CAUSE" shall mean the
Executive's (i) neglect, failure or refusal to timely perform the duties of his
employment (other than by reason of a physical or mental illness or impairment),
or his gross negligence in the performance of his duties in any material
respect, (ii) material breach of any agreements, covenants and representations
made in any employment agreement or other agreement with the Corporation or any
subsidiary, (iii) material violation of any law, rule, regulation or by-law of
any governmental authority (state, federal or foreign), any securities exchange
or association or other regulatory or self-regulatory body or agency applicable
to the Corporation or any subsidiary or any material general policy or directive
of the Corporation or any subsidiary, (iv) conviction of, or plea of guilty or
nolo contendere to, a crime involving moral turpitude, dishonesty, fraud or
unethical business conduct, or a felony, (v) violation of the Employee
Non-Disclosure, Non-Competition and Assignment of Inventions Agreement, (v)
giving or accepting undisclosed material commissions or other payments in cash
or in kind in connection with the affairs of the Corporation or its clients,
(vi) failure to obtain or maintain any registration, license or other
authorization or approval that the Corporation or any subsidiary reasonably
believes is required in order for the Grantee to perform his duties, or (vii)
habitual abuse of alcohol or drugs.
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7.2 TERMINATION BY THE EMPLOYEE. The Employee may terminate this Agreement
at any time, for any reason or for no reason at all, by giving notice thereof to
the Corporation at least thirty (30) days before the effective date of such
termination. The Employment Period shall terminate as of the date of such
termination of employment.
7.3 SEVERANCE BENEFITS.
(a) Except as provided in 7.3(b), if the Employee's employment under
this Agreement is terminated before the end of the Employment Period by the
Corporation without Cause or if the Employee dies or becomes totally disabled
(as defined in Section 7.4), the Corporation shall pay the Employee a lump sum
cash payment, within thirty (30) days of the date of such termination, equal to
the Bonus, calculated as of the termination of the Employee's employment, less
Draw paid to that date.
(b) If the Employee's employments under this Agreement is terminated
by the Corporation following a Change of Control without Cause or by the
Employee for Good Reason, the Corporation shall pay the Employee a lump sum cash
payment, within thirty (30) days of the date of such termination, equal to the
greater of (x) one million dollars ($1,000,000) or (y) the Bonus, calculated as
of the termination of the Employee's employment, less Draw paid to that date.
(c) If the Employee's employment under this Agreement is terminated
by the Corporation for Cause or by the Employee without Good Reason, the
Corporation shall only pay the Employee a lump sum cash payment within thirty
(30) days of the date of such termination, equal to Employee's unpaid Draw to
the termination date.
(d) "GOOD REASON" means (i) any material reduction in the Employee's
authority, duties or responsibilities occurring after a Change in Control or
(ii) any material failure by the Corporation to pay or provide the compensation
and benefits under this Agreement; provided that, in each such event, the
Employee shall give the Corporation notice thereof which shall specify in
reasonable detail the circumstances constituting Good Reason, and there shall be
no Good Reason with respect to any such circumstances cured by the Corporation
within thirty (30) days after such notice.
(e) A "CHANGE IN CONTROL" shall be deemed to have occurred on:
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(i) the date of the acquisition by any "person" (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act), excluding the Corporation or any of its subsidiaries
or affiliates or any employee benefit plan sponsored by
any of the foregoing, of beneficial ownership (within the
meaning of Rule 13d-3 under the Exchange Act) of 50.1% or
more of either (x) the then outstanding shares of common
stock of the Corporation or (y) the then outstanding
voting securities entitled to vote generally in the
election of directors; or
(ii) the date the individuals who constitute the Board as of
the date of the Corporation's initial public offering (the
"Incumbent Board") cease for any reason to constitute at
least a majority of the members of the Board, provided
that any individual becoming a director subsequent to the
effective date of the initial public offering whose
election, or nomination for election by the Corporation's
stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent
Board (other than any individual whose nomination for
election to Board membership was not endorsed by the
Corporation' management prior to, or at the time of, such
individual's initial nomination for election) shall be,
for purposes of the Plan, considered as though such person
were a member of the Incumbent Board; or
(iii) the consummation of a merger, consolidation,
recapitalization, reorganization, sale or disposition of
all or a substantial portion of the Corporation's assets,
a reverse stock split of outstanding voting securities,
the issuance of shares of stock of the Corporation in
connection with the acquisition of the stock or assets of
another entity, provided, however, that a Change in
Control shall not occur under this clause (iii) if
consummation of the transaction would result in at least
51% of the total voting power represented by the voting
securities of the Corporation (or, if not the Corporation,
the entity that succeeds to all or substantially all of
the Corporation's business) outstanding immediately after
such transaction being beneficially owned (within the
meaning of Rule 13d-3 promulgated pursuant to the Exchange
Act) by at least 75% of the holders of outstanding voting
securities of the Corporation immediately prior to the
transaction, with the voting power of each such continuing
holder relative to other such continuing holders not
substantially altered in the transaction.
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(f) If the Employee is entitled to receive payments or other benefits
under this Agreement upon the termination of his employment with the
Corporation, the Employee hereby irrevocably waives the right to receive any
payments or other benefits under any other severance or similar plan maintained
by the Corporation ("OTHER SEVERANCE PLAN"), provided, however, that if the
payments and other benefits provided under such Other Severance Plan exceed the
payments and other benefits under this Agreement, the Employee, in his sole
discretion, may elect to receive the payments and benefits under such Other
Severance Plan in lieu of the payments and benefits under this Agreement upon
his termination of employment. Notwithstanding anything to the contrary in this
Agreement, nothing contained herein shall affect Employee's rights with respect
to any stock option, restricted stock or other equity participation granted
pursuant to any stock option, restricted stock, or other equity participation
plan of the Corporation or its affiliates, all of which shall be governed by the
terms of the governing documents, including the specific grant documents.
7.4 TERMINATION BY DEATH OR DISABILITY. Except for the right to the
payment of any unpaid Bonus, as provided in this Agreement, This Agreement shall
terminate automatically upon the Employee's death. If the Corporation determines
in good faith that the Employee has a "total disability" (within the meaning of
such term or of a similar term as defined in the Corporation's long-term
disability plan as in effect from time to time), the Corporation may terminate
his employment under this Agreement by notifying the Employee thereof at least
thirty (30) days before the effective date of such termination.
8. NOTICES. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and if sent by
registered or certified mail to the Employee at the last address he has filed in
writing with the Corporation or, in the case of the Corporation, to the
Corporation's principal executive offices.
9. WITHHOLDING TAXES. The Corporation shall have the right, to the extent
permitted by law, to withhold from any payment of any kind due to the Employee
under this Agreement to satisfy the tax withholding obligations of the
Corporation under applicable law.
11. BINDING AGREEMENT; WAIVER. This Agreement shall be binding upon the
Employee and the Corporation on and after the date of this Agreement. The rights
and obligations of the Corporation under this agreement shall inure to the
benefit of and shall be binding upon the Corporation and any successor of the
Corporation, and the benefits of this Agreement shall inure to the benefit of
the Employee's estate and beneficiaries in the event of the Employee's death.
Neither party may assign his or its duties or rights under this Agreement
without the prior written consent of the other party; provided, however that (i)
the Corporation may assign this Agreement to any subsidiary, parent or
affiliate, without the consent of the Employee, and such assignment shall not,
in and of itself, constitute, a termination of employment under this Agreement
and (ii) this Agreement may be assigned without consent in connection with any
sale of all or substantially all of the Corporation's assets or upon any merger,
consolidation or reorganization of the Corporation with or into any other
corporation.
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13. ENTIRE AGREEMENT. This Agreement and the SoundView Technology Group,
Inc. Employee Non-Disclosure, Non-Competition and Assignment of Inventions
Agreement constitute the entire understanding of the Employee and the
Corporation with respect to the subject matter hereof and supersedes and voids
any and all prior agreements or understandings, written or oral, regarding the
subject matter hereof. This Agreement may not be changed, modified, or
discharged orally, but only by an instrument in writing signed by the parties.
14. GOVERNING LAW AND SEVERABILITY. This Agreement shall be governed by
the laws of the State of New York (without giving effect to choice of law
principles or rules thereof that would cause the application of the laws of any
jurisdiction other than the State of New York) and the invalidity or
unenforceability of any provisions hereof shall in no way affect the validity or
enforceability of any other provision. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective only to the extent of such prohibition or unenforceability
without invalidating or affecting the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
15. ARBITRATION. DISPUTES REGARDING THE EMPLOYEE'S EMPLOYMENT WITH THE
CORPORATION, INCLUDING, WITHOUT LIMITATION, ANY DISPUTE UNDER THIS AGREEMENT
WHICH CANNOT BE RESOLVED BY NEGOTIATIONS BETWEEN THE CORPORATION AND THE
EMPLOYEE, BUT EXCLUDING ANY DISPUTES REGARDING THE EXECUTIVE'S COMPLIANCE WITH
THE RESTRICTIONS OF THE EMPLOYEE NON-DISCLOSURE, NON-COMPETITION AND ASSIGNMENT
OF INVENTIONS AGREEMENT REFERRED TO IN SECTION 6 OF THIS AGREEMENT, SHALL BE
SUBMITTED TO, AND SOLELY DETERMINED BY, FINAL AND BINDING ARBITRATION CONDUCTED
BY JAMS/ENDISPUTE, INC.'S ARBITRATION RULES APPLICABLE TO EMPLOYMENT DISPUTES,
AND THE PARTIES AGREE TO BE BOUND BY THE FINAL AWARD OF THE ARBITRATOR IN ANY
SUCH PROCEEDING. THE ARBITRATOR SHALL APPLY THE LAWS OF THE STATE OF NEW YORK
WITH RESPECT TO THE INTERPRETATION OR ENFORCEMENT OF ANY MATTER RELATING TO THIS
AGREEMENT; IN ALL OTHER CASES THE ARBITRATOR SHALL APPLY THE LAWS OF THE STATE
SPECIFIED IN THE CORPORATION'S ALTERNATIVE DISPUTE RESOLUTION POLICY AS IN
EFFECT FROM TIME TO TIME (IF ANY). ARBITRATION MAY BE HELD IN NEW YORK, NEW
YORK, OR SUCH OTHER PLACE AS THE PARTIES HERETO MAY MUTUALLY AGREE, AND SHALL BE
CONDUCTED SOLELY BY A FORMER JUDGE. JUDGMENT UPON THE AWARD BY THE ARBITRATOR
MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first above written.
WITNESS/ATTEST SOUNDVIEW TECHNOLOGY GROUP, INC.
By:
-------------------------------- --------------------------------------
Xxxx X. Xxxxx
Chief Executive Officer
EMPLOYEE
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Date:______________________
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EXHIBIT 1
SOUNDVIEW TECHNOLOGY GROUP, INC.
EMPLOYEE NON-DISCLOSURE, NON-COMPETITION
AND ASSIGNMENT OF INVENTIONS AGREEMENT
+
In consideration and as a condition of the continued employment of Xxxxxx
Xxxxx (the "Employee") by SoundView Technology Group, Inc. (the "Company"), the
Employee hereby agrees with the Company as follows:
1. USE OF CONFIDENTIAL INFORMATION. During the course of the
Employee's employment with the Company, the Employee has and will continue to
gain access to or knowledge of, or work on the development or creation of
Confidential Information (as hereinafter defined). The Employee hereby agrees
that he will not at any time, whether during or after the termination of his
employment, reveal to any person or entity any Confidential Information of the
Company or of any third party which the Company is under an obligation to keep
confidential, except as may be required in the ordinary course of performing his
duties as an employee of the Company, and the Employee shall keep secret all
Confidential Information and shall not use or attempt to use any such
information in any manner, except as may be required in the ordinary course of
performing his duties as an employee of the Company.
2. DEFINITION OF CONFIDENTIAL INFORMATION. As used herein, the term
"Confidential Information" shall mean all trade secrets and confidential and
proprietary information relating to the Company, including, without limitation:
(a) supplier and customer lists, supplier and customer-specific information,
user lists, vendor lists and content provider lists; (b) planning data and
selling and marketing strategies; (c) product and process designs, formulas,
processes, plans, drawings, concepts, techniques, systems, strategies, software
programs and works of authorship; (d) manufacturing and operating methods; (e)
research and development data and materials, including those related to the
research and development of products, materials or manufacturing and other
processes; (f) financial and accounting information, financial and accounting
records, pricing information, projects, budgets, projections and forecasts; (g)
all industrial and intellectual property rights, including, without limitation,
patents, patent applications, patent rights, trademarks, trademark applications,
trade names, service marks, service xxxx applications, copyrights, copyright
applications, databases, algorithms, computer programs and other software,
know-how, trade secrets, proprietary processes and formulae, inventions, trade
dress, logos, design and all documentation and media constituting, describing or
relating to the above; and (h) other information with respect to the
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Company, which, if divulged to the Company's competitors, would impair the
Company's ability to compete in the marketplace.
Confidential Information shall not include: (i) information that
at the time of disclosure is in the public domain through no fault of the
Employee; (ii) information received from a third party outside of the Company
that was disclosed without a breach of any confidentiality obligation; or (iii)
information approved for release by written authorization of the Company.
In the event the Employee becomes legally compelled to disclose
Confidential Information pursuant to a subpoena, summons, order or other
judicial or governmental process, the Employee shall provide the Company with
prompt notice thereof so that the Company may seek a protective order or another
appropriate remedy, or waive compliance with the relevant provisions of this
agreement. In the event such a protective order or other remedy is not obtained,
or that such a waiver is granted, the Employee shall furnish only that portion
of the Confidential Information that is legally required.
3. RETURN OF CONFIDENTIAL INFORMATION. The Employee hereby further
agrees that during his employment he shall not take, use or permit to be used
any notes, memoranda, reports, lists, records, drawings, sketches,
specifications, software programs, data, documentation or other materials of any
nature relating to any matter within the scope of the business of the Company or
concerning any of its dealings or affairs otherwise than for the benefit of the
Company. The Employee further agrees that he shall not, after the termination of
his employment, use or permit to be used any such notes, memoranda, reports,
lists, records, drawings, sketches, specifications, software programs, data,
documentation or other materials, it being agreed that all of the foregoing
shall be and remain the sole and exclusive property of the Company and that
immediately upon the termination of his employment, the Employee shall deliver
all of the foregoing, and all copies thereof, to the Company at its main office.
4. ASSIGNMENT OF DEVELOPMENTS. If at any time or times during his
employment the Employee shall (either alone or with others) make, conceive,
discover or reduce to practice any invention, modification, discovery, design,
development, improvement, process, software program, work-of-authorship,
documentation, formula, data, technique, know-how, secret or intellectual
property right whatsoever or any interest therein (whether or not patentable or
registrable under copyright or similar statutes or subject to analogous
protection) (herein called "Developments") that (a) relates to the business of
the Company or any customer of or supplier to the Company or any of the products
or services being developed, manufactured, sold or provided by the Company or
which may be used in relation therewith, (b) results from tasks assigned to the
Employee by the Company or (c) results from the use of premises or personal
property (whether tangible or intangible) owned, leased or contracted for by the
Company, such Developments and the benefits thereof shall immediately become the
sole and absolute property of the Company and its assigns, and the Employee
shall promptly disclose to the Company (or any persons designated by it) each
such Development and hereby assigns any rights the
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Employee may have or acquire in the Developments and benefits and/or rights
resulting therefrom to the Company and its assigns without further compensation
and shall communicate, without cost or delay, and without publishing the same,
all available information relating thereto (with all necessary documentation,
plans and models) to the Company.
Upon disclosure of each Development to the Company, the Employee
will, during his employment and at any time thereafter, at the request and cost
of the Company, sign, execute, make and do all such deeds, documents, acts and
things as the Company and its duly authorized agents may reasonably require:
a. to apply for, obtain and vest in the name of the Company
alone (unless the Company otherwise directs) letters
patent, copyrights, trademarks, service marks or other
analogous protection in any country throughout the world
and when so obtained or vested to renew and restore the
same; and
b. to defend any opposition proceedings in respect of such
applications and any opposition proceedings or petitions
or applications for revocation of such letters patent,
copyrights, trademarks, service marks or other analogous
protection.
In the event the Company is unable, after reasonable effort, to
secure the Employee's signature on any letters patent, copyrights, trademarks,
service marks or other analogous protection relating to a Development, whether
because of the Employee's physical or mental incapacity or for any other reason
whatsoever, the Employee hereby irrevocably designates and appoints the Company
and its duly authorized officers and agents as the Employee's agent and
attorney-in-fact, to act for and in his behalf and stead to execute and file any
such application or applications and to do all other lawfully permitted acts to
further the prosecution and issuance of any such letters patent, copyrights,
trademarks, service marks and other analogous protection thereon with the same
legal force and effect as if executed by the Employee.
5. NON-COMPETITION. While employed at the Company, the Employee
agrees that he will not, whether alone or as an individual proprietor, partner,
officer, director, consultant, agent, employee or stockholder of any company or
other commercial enterprise, directly or indirectly, engage in any business
activity that competes with any business conducted by the Company or any of its
subsidiaries at any time during the period of the Employee's employment with the
Company, or any business planned by the Company or any of its subsidiaries at
any time during the period of the Employee's employment with the Company nor
otherwise assist such company or other commercial enterprise in engaging in such
business activity. The Employee shall be permitted to own securities of a public
company not in excess of one percent (1%) of any class of such securities and
such ownership shall not, by itself, violate the terms of this Paragraph 5.
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6. NON-SOLICITATION OF COMPANY EMPLOYEES. While employed at the
Company and for a period of one (1) year after termination of the Employee's
employment for any reason (whether voluntary or involuntary), the Employee will
not, directly or indirectly, solicit, recruit or hire any employee of the
Company to work for a third party other than the Company or engage in any
activity that would cause any employee to violate any agreement with the
Company.
7. [INTENTIONALLY OMITTED]
8. EMPLOYEE REPRESENTATIONS.
(a) The Employee hereby represents and warrants to the Company
that, except as specifically disclosed in writing to the Company prior to
commencing employment with the Company, the Employee is not bound by the terms
of any agreement with any previous employees or other party to refrain from
using or disclosing any trade secret or confidential or proprietary information
in the course of his employment with the Company or to refrain from competing,
directly or indirectly, with the business of such previous employer or any other
party.
(b) The Employee further represents and warrants to the
Company that his performance of all the terms of this Agreement and 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 the Employee
in confidence or in trust prior to his employment with the Company, and the
Employee 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.
9. INJUNCTIVE RELIEF. The Employee agrees that any breach of this
Agreement by the Employee will cause irreparable damage to the Company and that
in the event of such breach the Company shall have, in addition to any and all
remedies of law, the right to an injunction, specific performance or other
equitable relief to prevent the violation of the Employee's obligations
hereunder. Nothing herein contained shall be construed as prohibiting the
Company from pursuing any other remedy available for such breach or threatened
breach. The prevailing party in any litigation arising under this Agreement
shall be entitled to recover his or its attorneys' fees and expenses in addition
to all other available remedies.
10. MISCELLANEOUS.
(a) The Employee understands that this Agreement does not create an
obligation on the Company or any other person or entity to continue the
Employee's employment or to exploit any Developments.
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(b) Any waiver by the Company of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
of such provision or any other provision hereof.
(c) The Employee hereby acknowledges that the type and periods of
restriction imposed in the provisions of this Agreement are fair and reasonable
and are reasonably required for the protection of the Company's proprietary
information and the goodwill associated with the business of the Company. The
Employee hereby further acknowledges that the provisions of this Agreement shall
be enforced to the fullest extent permissible under the laws and public policies
applied in each jurisdiction in which enforcement is sought. Accordingly, the
Employee agrees that if any particular provision of this Agreement shall be
adjudicated to be invalid or unenforceable, such provision shall be deemed
amended to delete therefrom the portion thus adjudicated to be invalid or
unenforceable, such deletion to apply only with respect to the operation of such
provision in the particular jurisdiction in which such adjudication is made. In
addition, if 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. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
(d) The Employee's obligations under this Agreement shall survive the
termination of the Employee's employment regardless of the manner of such
termination and shall be binding upon the Employee's heirs, executors,
administrators and legal representatives.
(e) The term "Company" shall include SoundView Technology Group, Inc.
and any of its subsidiaries and divisions. The Company shall have the right to
assign this Agreement to its successors and assigns, and all covenants and
agreements hereunder shall inure to the benefit of and be enforceable by said
successors or assigns.
(f) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be
performed wholly therein (without regard to principles of conflicts of laws).
IN WITNESS WHEREOF, the undersigned has executed this Employee
Non-Disclosure, Non-Competition and Assignment of Inventions Agreement as of
the __ day of May 2002.
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Signature
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Name - please print
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Address
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