EMPLOYMENT AGREEMENT
--------------------
THIS AGREEMENT made as of the 1st day of August, 0000
X X X X X X X:
STORAGE @CCESS TECHNOLOGIES, INC., a
company incorporated under the laws of the
Yukon Territory having an office at 0000
Xxxxx Xxxxxxx Xxxxxxx, Xxxxxxxx X000, Xxxx
Xxxxx, Xxxxxxx 00000
(herein called the "Corporation")
OF THE FIRST PART
A N D:
XXXX XXXXXX, of Lake Worth, Florida
(herein called the "Executive")
OF THE SECOND PART
WHEREAS:
A. The Corporation carries on the business of hosted
data storage throughout the world (the "Business");
B. The Corporation has agreed to employ the Executive in the
Business and the Executive has agreed to accept such employment,
subject to the terms, conditions and covenants herein provided;
C. The Corporation and the Executive are desirous of having
certain rights and benefits in the event that the Executive's
employment relationship with the Corporation is terminated in the
manner set out herein; and
D. The Corporation wishes to retain the benefit of the
Executive's employment with the Corporation and to ensure that
the Executive is able to carry out his responsibilities with the
Corporation free from any distractions associated with any change
in the ownership of the Corporation or its assets.
NOW THEREFORE, in consideration of the mutual covenants herein
contained and other good a valuable consideration (the receipt
and sufficiency whereof are hereby acknowledged), the Corporation
and the Executive hereby agree as follows:
1. The Corporation hereby employs the Executive to render
services to the Corporation as, and to undertake the duties and
exercise powers of, the Chief Operating Officer and Chief Technology
EXHIBIT 10.3
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Officer of the Corporation, subject always to the general
control and direction of the Chief Executive Officer and
Board of Directors of the Corporation (the "Board"). The
Executive agrees to hold such other offices to which he may
be appointed in any affiliate or subsidiary of the Corporation
that is involved in the Business. The Executive accepts these
positions, on the terms and conditions herein contained.
2. The Executive shall carry out all lawful instructions and
directions from time to time given to him by the Chief Executive
Officer and/or the Board and perform his duties to the utmost of
his ability and the Executive shall use his best efforts to
promote the interests and goodwill of the Corporation and shall
conduct himself in a diligent, competent and businesslike manner
and as the Executive may be otherwise directed to perform by the
Chief Executive Officer or Board of the Corporation.
3. Through the term of this Agreement, including any renewals
hereof, the Executive shall devote all of his time and attention
to the business and affairs of the Corporation and its
subsidiaries and shall not, without the consent in writing of the
Corporation, undertake any other business or occupation or become
an employee or agent of any other corporation, firm, partnership
or individual; provided that nothing herein shall be construed so
as to prevent the Executive from making investments of a strictly
passive nature, so long as such investments, when considered
together, are not of a type or in an amount such as would
conflict with the performance by the Executive of his duties
hereunder.
4. The term of the Executive's employment shall be for an
indefinite period, until such time as the employment of the
Executive is terminated by the Corporation or voluntarily by the
Executive in accordance with the provisions of this Agreement.
5. Executive agrees to refer to the Corporation any and all
opportunities to provide the services and products offered by the
Corporation from time to time, which opportunities Executive
learns or becomes aware of while employed by the Corporation.
The Corporation reserves the right within its sole discretion to
pursue such opportunities and accept or reject business as a
result of such opportunities.
6. The Corporation shall employ the Executive at an annual
salary to be determined periodically by the Board (the "Base
Salary"), payable regularly in accordance with the Corporation's
practice (less applicable legal deductions). The performance of
the Executive will be reviewed annually by the Corporation, and
at the sole option of the Board the Base Salary of the Executive
may be increased, decreased or unadjusted; provided, however, the
Corporation shall be under no obligation to increase the Base
Salary at the time of any such review.
6.1 The Corporation acknowledges that, in order to entice the
Executive to work for the Corporation on February 13, 2001 it
issued 500,000 common shares to the Executive; as a result of
this issuance, the Executive will have to pay income taxes in
addition to those normally levied on his salary, and the
Corporation agrees to lend to the Executive the amount of his
additional income tax obligation arising from the issuance of the
shares, on or before April 15, 2002. Such loan shall bear
interest at the rate set by the Internal Revenue Service for
loans to employees and shall be repayable within two years of the
date of the loan; provided, however, that if the employment of
the Executive is terminated for any reason, it shall be due on
demand. The loan shall be made upon presentation by the Executive
EXHIBIT 10.3
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of his final income tax return, showing the additional income tax
liability. This loan is secured by the shares issued to the
executive only. This loan may be repaid either in cash or by
transference of the shares to the corporation, with the
executive's liability and obligation to repay being limited to
the value of the shares at the time repayment is due. Therefore,
the corporation will accept transference of the executives shares
as repayment in full.
7. The Executive shall be eligible to participate in all
benefit plans and programs offered from time to time by the
Corporation to senior employees at the level of the Executive.
If part of the said benefit program consists of the provision of
health, life or disability insurance for the Executive and his
estate, the Executive agrees to provide necessary medical
information and to undergo medical examinations as may be
reasonably requested by insurance carriers in this regard. The
Executive agrees that there is no corporate pension plan or other
profit sharing or retirement program offered by the Corporation
as of the date of this Agreement.
8. The Corporation shall pay all premium costs and
contributions associated with the group benefits program under
which the Executive is covered. The group benefits program
presently includes coverage of health and dental care insurance,
life and accidental death and dismemberment insurance,
dependant's life insurance and disability insurance. The
Executive will be eligible to participate in the benefit plans
and programs in accordance with the terms and conditions of the
particular plans and programs. Executive understands and agrees
that such benefits offered by the Corporation may be modified or
eliminated by the Corporation from time to time at the
Corporation's sole discretion to the extent permitted by law.
9. The Corporation shall pay all reasonable expenses actually
and properly incurred by the Executive in furtherance of or in
connection with the Business of the Corporation in accordance
with the Corporation's policies, including, but not by way of
limitation, all travel expenses and entertainment expenses. If
the Executive pays any such expenses in the first instance, the
Corporation shall reimburse him therefor, subject to the receipt
by the Corporation of statements and vouchers in form reasonably
satisfactory to it.
10. The Executive shall be entitled to an annual vacation of up
to three weeks in each calendar year. Such vacations may be
taken only at such times as the Executive and the Corporation may
from time to time reasonably determine having regard to the
operations of the Corporation; and provided further that such
vacations may be taken only within the year of entitlement
thereto and may not be accumulated from year to year. If the
Executive does not use all or part of the annual vacation, the
remaining vacation time shall be lost.
11. This Agreement shall terminate under any one of the
following circumstances:
11.1 Termination For Cause: Notwithstanding the Initial Term of
this Agreement or any subsequent renewal periods of this
Agreement, the Corporation may terminate this Agreement
immediately, upon written notice to Executive, for "good cause"
as that phrase is defined below. As used in this Agreement, the
term "good cause" shall mean:
(i) the failure or refusal of the Executive to perform his
duties and responsibilities at an acceptable level or
standard, provided that the Executive has been provided
EXHIBIT 10.3
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written notice of such failure and has not corrected
his behavior, including patterns of repeated behavior,
within 20 days of receiving such notice;
(ii) any dishonesty on the part of the Executive affecting
the Corporation;
(iii) the commission by the Executive of a criminal
offense, including but not limited to, any crimes
involving theft, embezzlement, forgery, fraud, perjury,
drugs, tax evasion or any criminal offense involving
dishonesty or breach of trust.
(iv) excessive use of alcohol or illegal drugs by the
Executive;
(v) any willful and intentional act on the part of the
Executive having the effect of materially injuring the
reputation, business or business relationships of the
Corporation;
(vi) any material breach (not covered by any of the above
clauses (i) through (v)) of any of the provisions of
this Agreement.
11.2 Termination by Corporation Without Good Cause: At any time,
upon written notice to Executive, the Corporation may terminate
the employment of the Executive for any reason other than good
cause. In such event, Executive shall be entitled to receive all
compensation due and owing through the last day actually worked.
Executive shall also be entitled to receive an additional payment
equal to 100% of his then annual Base Salary (less
applicable legal deductions). Subject to section 12, the amount
shall be paid in twelve equal monthly installments from
the date of termination.
11.3 Mutual Consent to Terminate: This Agreement shall
immediately terminate upon the mutual consent of the parties to
terminate Executive's employment with the Corporation, which
consent shall be evidenced by a written agreement of termination
signed by the parties.
11.4 Termination Upon Death: This Agreement shall terminate
immediately upon Executive's death.
11.5 Termination on Account of Disability: To the extent not
prohibited by the Americans With Disabilities Act of 1990 or
Chapter 760, Florida Statutes, if, as a result of Executive's
incapacity due to physical or mental illness (as determined in
good faith by a physician acceptable to the Corporation and
Executive), Executive shall have been absent from the full-time
performance of his duties with the Corporation for 120
consecutive days during any twelve (12) month period or if a
physician acceptable to the Corporation advises the Corporation
that it is likely that Executive will be unable to return to the
full-time performance of his duties for 120 consecutive days
during the succeeding twelve (12) month period, his employment
may be terminated for "Disability". During any period that
Executive fails to perform his full-time duties with the
Corporation as a result of incapacity due to physical or mental
illness, he shall continue to receive his Base Salary, and other
benefits provided hereunder, together with all compensation
payable to him under the Corporation's disability plan or program
or other similar plan during each period, until Executive's
employment hereunder is terminated pursuant to this sub-section
11.5. Thereafter, Executive's benefits shall be determined under
EXHIBIT 10.3
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the Corporation's insurance or other compensation and benefit
plans and programs then in effect, in accordance with the terms
of such programs.
11.6 In the event of the termination of this Agreement pursuant
to sub-sections 11.1 and 11.3 through 11.5 above, the Corporation
shall only pay to Executive, or in the case of death or
disability, to the person or persons previously designated by the
Executive in writing and provided to the Corporate Secretary of
the Corporation, for such purposes, or his estate if no such
designation was made, the accrued portion of the compensation and
benefits, if any, due Executive pursuant to this Agreement at the
time of the termination of this Agreement. Payments will be made
in six consecutive monthly installments. Thereafter, unless
specifically provided for in this Agreement, the Corporation will
be under no further obligation to Executive, or if the case may
be, to the Executive's previously designated person or persons,
or to the Executive's estate.
12. Terms used in this section 12 but not otherwise defined
herein have the meanings set forth below:
(a) "Benefit Plans" means any employee loan, insurance,
long-term disability, medical, dental and other
executive and employee benefit plans, including any
pension or group plans, perquisites and privileges as
may be provided by the Corporation or any subsidiary of
the Corporation to the Executive;
(b) "Change in Control" means a transaction or series of
transactions whereby directly or indirectly:
(i) any person or combination of persons (other than
any combination which includes Xxxxxx de xx Xxxxx
with Xxxxxxxx Xxxxxx) obtains a sufficient number
of securities of the Corporation to affect
materially the control of the Corporation; for the
purposes of this Agreement, a person or
combination of persons holding shares or other
securities in excess of the number which, directly
or following conversion thereof, would entitle the
holders thereof to cast 25% or more of the votes
attaching to all shares of the Corporation which
may be cast to elect directors of the Corporation,
shall be deemed to be in a position to affect
materially the control of the Corporation; or
(ii) the Corporation shall consolidate or merge with or
into, amalgamate with, or enter into a statutory
arrangement with, any other person (other than a
subsidiary of the Corporation) or any other person
(other than a subsidiary of the Corporation) shall
consolidate or merge with or into, or amalgamate
with or enter into a statutory arrangement with,
the Corporation, and, in connection therewith, all
or part of the outstanding voting shares shall be
changed in any way, reclassified or converted
into, exchanged or otherwise acquired for shares
or other securities of the Corporation or any
other person or for cash or any other property; or
(iii) the Corporation shall sell or otherwise
transfer, including by way of the grant of a
leasehold interest (or one or more of its
subsidiaries shall sell or otherwise transfer,
EXHIBIT 10.3 -
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including by way of the grant of a leasehold
interest), property or assets (A) aggregating more
than 50% of the consolidated assets (measured by
either book value or fair market value) of the
Corporation and its subsidiaries as at the end of
the most recently completed financial year of the
Corporation or (B) which during the most recently
completed financial year of the Corporation
generated, or during the then current financial
year of the Corporation are expected to generate,
more than 50% of the consolidated operating income
or cash flow of the Corporation and its
subsidiaries, to any other person or persons
(other than the Corporation or one or more of its
subsidiaries); or
(iv) there occurs a change in the composition of the
Board, which occurs at a single meeting, or a
succession of meetings occurring within 6 months
of each other, of the shareholders of the
Corporation, whereby such individuals who were
members of the Board immediately prior to such
meeting cease to constitute a majority of the
Board without the Board, as constituted
immediately prior to such meeting, approving of
such change.
(c) "Share Option" means any stock option granted under a
stock option or share purchase plan of the Corporation;
and
(d) "Triggering Event" means any one of the following
events which occurs without the express or implied
agreement of the Executive:
(i) an adverse change in any of the duties, powers,
rights, discretion, salary or benefits of the Exe
cutive as they exist at the date of a Change in
Control; or
(ii) a diminution of the title of the Executive as it
exists at the date of this Agreement; or
(iii) a change in the person or body to whom the
Executive reports at the date of this Agreement,
except if such person or body is of equivalent
rank or stature or such change is as a result of
the resignation or removal of such person or the
persons comprising such body, as the case may be,
provided that this shall not include a change
resulting from a promotion in the normal course of
business; or
(iv) a change in the municipality at which the
Executive is regularly required to carry out the
terms of his employment with the Corporation at
the date of this Agreement unless the Executive's
terms of employment include the obligation to
receive geographic transfers from time to time in
the normal course of business; or
EXHIBIT 10.3
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(v) both of Xxxxxx de xx Xxxxx and Xxxxxxxx Xxxxxx
cease to be directors of the Corporation.
12.1 Notwithstanding anything to the contrary contained in this
Agreement, if a Change in Control occurs and if, in respect of
the Executive, a Triggering Event subsequently occurs within two
(2) years of the Change in Control, the Executive shall be
entitled to elect to terminate his employment with the
Corporation and to receive a payment from the Corporation in an
amount equal to one times his then current annual base salary.
This section 12 shall not apply if such Triggering Event follows
a Change in Control which involves a sale of securities or assets
of the Corporation with which the Executive is involved as a
purchaser in any manner, whether directly or indirectly (by way
of participation in a corporation or partnership that is a
purchaser or by provision of debt, equity or purchase-leaseback
financing).
12.2 All termination rights of the Executive provided for in
subsection 12.1 are conditional upon the Executive electing to
exercise such rights by notice given to the Corporation within
120 days of the Triggering Event.
12.3 Notwithstanding the provisions contained in section 11
herein, the Executive shall be entitled to a payment by the
Corporation of the amount calculated as provided for in
subsection 12.1 if a Triggering Event does not occur but the
Executive is dismissed from his employment with the Corporation
without cause within two (2) years of the Change in Control. The
Corporation shall not dismiss the Executive for any reason unless
such dismissal is specifically approved by the Board of Directors
of the Corporation.
12.4 All payments provided for herein shall be in lieu of all
other notice or damage claims as regards dismissal or termination
of the Executive's employment with the Corporation or any
subsidiary of the Corporation after a Change in Control and the
arrangements provided for herein shall not be considered in any
judicial determination of appropriate damages at common law for
dismissal without cause, other than as provided for in this
Agreement.
12.5 In the event that the Executive is entitled to a payment
pursuant to section 12, the Executive shall be entitled to have
all Benefit Plans continued for a period of 12 months after the
date of the giving of notice by the Executive pursuant to
subsection 12.2, or the dismissal of the Executive's employment
pursuant to subsection 12.3, as the case may be, or for any
longer period available under any Benefit Plans when coverage is
provided from a source other than the Corporation.
12.6 In the event that the Executive is entitled to a payment
pursuant to this section 12, any Stock Option previously granted
to the Executive by the Corporation or any subsidiary of the
Corporation shall become fully vested, in which case the
Executive shall be entitled to exercise such Stock Options on the
terms granted and, notwithstanding any term of the stock option
plan to the contrary, shall remain exercisable for the original
term granted and shall not terminate due to the termination of
the Executive's employment with the Corporation. In addition,
any provisions of the Stock Option restricting the number of
option shares which may be purchased before a particular date
shall be waived. The terms of any Stock Option agreement shall
be deemed amended to reflect the provisions of this
subsection 12.6.
EXHIBIT 10.3
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12.7 The provisions contained in this Section 12, shall be
effective as of the date first above written and shall terminate
on December 31, 2005 unless extended with the mutual agreement
of the parties hereto and approved by the board of directors of
the Corporation.
12.8 Any payment to be made by the Corporation pursuant to the
terms of section 12 shall be paid by the Corporation in cash in a
lump sum within five business days of the giving of notice by the
Executive pursuant to subsection 12.1 or within five business
days of the termination or dismissal from the Executive's
employment as referred to in subsection 12.3, as the case may be.
Any such payment shall be calculated, in the case of
subsection 12.1 at the date of giving notice pursuant to
subsection 12.2 and, in the case of subsection 12.3, at the date
of dismissal or termination, as the case may be.
12.9 In the event that any payment is made to the Executive
pursuant to the provisions of subsection 12.1 or subsection 12.3,
as the case may be, the Executive shall not be required in any
manner whatsoever to mitigate any damages. Furthermore, the
payment referred to in subsections 12.1 and 12.3 shall be made
regardless of whether the Executive seeks or finds employment of
any nature whatsoever.
13. Executive understands that in the course of his
employment with Corporation, Executive will have access to, be
entrusted or become acquainted with and may acquire knowledge of
various confidential, trade secret and/or proprietary information
of Corporation and/or its clients and customers (all of which is
hereinafter referred to as "Confidential Business Information").
By way of illustration only, and not limitation, Confidential
Business Information may include information regarding: (a)
marketing strategies, programs, plans and methods; (b) pricing
policies, product strategies, and methods of operation and other
business methods; (c) customer lists, customer identification,
customer prospects, prospective leads or target accounts, and
other basic customer information; (d) technical data,
specifications, designs, concepts, discoveries, improvements,
product plans, research and development information, formulas,
compilations, programs, methods, techniques, inventions, devices,
systems, and techniques; (e) expansion plans, management policies
and other business policies and strategies, (f) business
forecasts, financial data, costs, sales and revenue reports, and
any analyses not publicly disclosed; (g) employment lists, salary
information and other information regarding employees, agents,
representatives, consultants and independent contractors of
Corporation; (h) internally developed computer programs and
software, computer source codes, integrated computer systems and
data, and internal procedures and forms; (i) lists of
Corporation' vendors and suppliers and terms of service
contracts; and (j) other information which enables Corporation to
compete successfully.
13.1 Executive hereby agrees not to use any of the
Confidential Business Information for any purpose other than in
the course and scope of his employment with Corporation and for
the exclusive benefit of Corporation. Except for disclosure in
the course and scope of his employment with Corporation and on
behalf of Corporation, Executive will never at any time, either
during or after his employment by Corporation, directly or
indirectly, use, publish, disseminate, distribute or otherwise
disclose any Confidential Business Information to any other
person or entity.
EXHIBIT 10.3
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13.2 Executive agrees to take all steps necessary, and all
steps requested by Corporation, to ensure that the Confidential
Business Information is kept secret and confidential and for the
sole use and benefit of Corporation and to comply with all
applicable policies and procedures of Corporation regarding the
storage and security of all Confidential Business Information,
whether in hard copy form or stored on computer disks or other
electronic media. He also acknowledges that the Confidential
Business Information is and has been the subject of efforts that
are reasonable under the circumstances to maintain its
confidentiality.
13.3 Executive acknowledges and agrees that the Confidential
Business Information is a special and unique asset of Corporation
and derives independent economic value, actual or potential, from
not being generally known by the public or by other persons or
entities who can obtain economic value from its disclosure. He
further agrees that the disclosure of any Confidential Business
Information to competitors of Corporation both during and after
his employment with Corporation, or use of any Confidential
Business Information for his own benefit would constitute
misappropriation of the Confidential Business Information.
13.4 Executive acknowledges that all documents and materials
that he prepares, and Confidential Business Information that he
may have access to, may be given or entrusted to Executive may
acquire knowledge of in the course of his employment by
Corporation, are and shall remain the sole property of
Corporation. In the event that his employment with Corporation
terminates for any reason, or upon demand by Corporation,
Executive agrees to immediately return or turn over to
Corporation all Confidential Business Information (and any copies
thereof) in his possession, custody or control, as well as any
documents, notes or other work product, information and other
property in his possession, custody or control which is in any
way connected with or derived from his services to, or
affiliation with, Corporation.
14. During his employment with the Corporation and for a
period equal to the period of time (the "Termination Period")
during which the Executive is receiving a termination payment
pursuant to the provisions of section 11 and ending one month
after receipt of his last payment pursuant to section 11,
Executive agrees not to, either individually or jointly,
directly or indirectly, either as an employee, employer,
operator, agent, independent contractor, owner, consultant,
partner, active investor or otherwise, provide to any actual or
prospective client of Corporation serviced by him or with
whom he otherwise dealt with while employed by Corporation
any products or services that compete with the products and
services offered by Corporation at the time of termination.
For the purpose of this Section 14 and sub-section 14.1,
"prospective client" means any prospective client who becomes a
client of the Corporation within three (3) months after
termination of the Executive's employment with the Corporation
for any reason.
14.1 Additionally, Executive agrees that during his
employment with Corporation and for the Termination Period,
Executive will not, directly or indirectly, call upon or solicit,
either for Executive or for any other person or entity, any
clients or accounts or prospective clients or accounts of
Corporation, nor shall he make known to any other person or
entity, either directly or indirectly, the names and addresses of
and other pertinent information relating to any such clients or
accounts or prospective clients or accounts, or any confidential
information relating to any of them.
EXHIBIT 10.3
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14.2 Executive agrees that this covenant not to solicit is
reasonable and necessary to protect Corporation' legitimate
business interests, including, without limitation, the
confidential business or professional information and trade
secrets of Corporation, the substantial relationships between
Corporation and its clients and accounts, and the goodwill of
Corporation. Executive also agrees that the duration of this
covenant not to solicit is reasonable. He further agrees
that the enforcement of this covenant not to solicit, whether by
injunctive relief, damages, or otherwise, is in no way contrary
to the public health, safety and welfare.
15. Executive agrees that during his employment with
Corporation and for the Termination Period, Executive will
not, directly or indirectly, or through any individual or
entity, (i) solicit, hire, retain, or engage, induce or
attempt to induce away, or aid, assist or abet any other
person or entity in soliciting, hiring, retaining, engaging,
inducing or attempting to induce away from his/her employment
or association with Corporation any current or former officer,
director, employee, independent contractor, consultant, agent,
or other personnel or representative of Corporation, or (ii)
otherwise disrupt, impair, damage or interfere with any
relationship between Corporation and any of its current or
former officers, directors, employees, independent contractors,
consultants, agents, or other personnel or representatives.
15.1 Executive agrees that this covenant not to solicit is
reasonable and necessary to protect Corporation' legitimate
business interests, including, without limitation, the
confidential business or professional information and trade
secrets of Corporation, the substantial relationships between
Corporation and its officers, directors, employees, independent
contractors, consultants, agents, and other personnel or
representatives. Executive also agrees that the duration
of this covenant not to solicit is reasonable. Executive
further agrees that the enforcement of this covenant not to
solicit, whether by injunctive relief, damages, or otherwise,
is in no way contrary to the public health, safety and welfare.
16. While employed by Corporation and for the Termination
Period, Executive will not anywhere in the world, individually
or jointly, directly or indirectly, whether as a partner,
owner, investor, joint venturer, officer, director,
employer, employee, operator, consultant, agent, independent
contractor, stockholder or otherwise, engage in or be related to
any business or enterprise that derives a majority of its revenue
from providing hosted storage solutions.
16.1 Executive agrees that this covenant not to compete is
reasonable and necessary to protect Corporation' legitimate
business interests, including, without limitation, the
confidential and professional information and trade secrets of
Corporation, the substantial relationships between Corporation
and its customers and clients, and the goodwill of Corporation.
Executive also agrees that the duration of this covenant
not to compete is reasonable. Additionally, Executive
acknowledges and agrees that Corporation provides its products
and services on a worldwide basis and, thus, the geographical
limitation of this covenant not to compete also is reasonable.
Executive further agrees that the enforcement of this covenant
not to compete, whether by injunctive relief, damages, or
otherwise, is in no way contrary to the public health, safety and
welfare.
EXHIBIT 10.3
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17. Executive represents and warrants to Corporation that
he is not under any contract, agreement or restrictive covenant,
and has not previously executed any documents whatsoever with any
other person, firm, association, or corporation, that will, in
any manner, prevent him from performing any of the job duties and
responsibilities that may be assigned to him from time to time by
Corporation.
18. Executive also represents and warrants that Executive
will not bring and have not brought with him to the Corporation
and that Executive will not use in the course and scope of his
employment with Corporation any confidential, proprietary and/or
trade secret materials, documents or information that he obtained
from a former employer or other individual or entity, without the
express written authorization of the pertinent former employer or
other individual or entity. Executive further represents and
warrants that, during his employment with Corporation, Executive
will not breach any obligation or duty to maintain confidential
and not to disclose or use that he may owe to any former employer
or other individual or entity, and Executive agrees to fulfill
and comply with any and all such obligations and duties during
his employment by Corporation.
19. If at any time during the term of his employment by
Corporation, and in the course of performing his duties and
responsibilities under this Agreement, Executive (either alone or
with others) makes, conceives, discovers or reduces 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 registerable under copyright or
similar statutes or subject to analogous protection) (hereinafter
called "Developments") that (i) relate to the business of
Corporation or any of the products or services being developed,
manufactured or sold by Corporation, or which may be used in
relation therewith; (ii) result, from tasks, duties and/or
responsibilities assigned to Executive by Corporation; or (iii)
result, directly or indirectly, from the use of premises or
personal property (whether tangible or intangible) owned, leased
or contracted for by Corporation, such Developments and the
benefits thereof shall be considered works made for hire and
shall immediately become the sole and absolute property of
Corporation and its assigns. Executive agrees to immediately
disclose to Corporation (or any persons designated by it) each of
such Developments and agree to immediately communicate to
Corporation, without cost or delay, and without publishing the
same, all available information relating thereto (with all
necessary plans and models).
19.1 If any of the Developments may not, by operation of law
or otherwise, be considered works made for hire by Executive for
Corporation, or if ownership of all right, title, and interest of
the intellectual property rights therein shall not otherwise vest
exclusively in Corporation, Executive hereby assigns to
Corporation, and upon the future creation thereof automatically
assigns to Corporation, without further consideration, the
ownership of all such Developments. Executive understands and
agrees that Corporation shall have the right to obtain and hold
in its own name copyrights, patents, registrations, and any other
protection available in the Developments. Upon disclosure of
each of such Developments to Corporation, Executive agrees during
the term of his employment and at any time thereafter, at the
request and cost of Corporation, to sign, execute, make and do
all such deeds, documents, acts and things as Corporation may
EXHIBIT 10.3
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reasonably require to perfect and protect all interests therein.
Such assignment includes a waiver of any moral right in such
Development.
19.2 In the event Corporation is unable, after reasonable
effort, to secure his signature on any letters patent, copyright
or other analogous protection relating to any Developments,
whether because of his physical or mental incapacity or for any
other reason whatsoever, Executive hereby irrevocably designates
and appoints Corporation and its duly authorized officers and
agents as his agent and attorney-in-fact, to act for and on his
behalf and to execute and file any such application(s) and to do
all other lawfully permitted acts to further the prosecution and
issuance of letters patent, copyright or other analogous
protection relating to any Developments with the same legal force
and effect as if executed by Executive.
19.3 [USE IF APPLICABLE] Executive represents that the
Developments, if any, identified in the Schedule of Separate
Works attached hereto as Exhibit A, comprise all the Developments
which he has made or conceived prior to his employment by
Corporation. Any such Developments listed in Exhibit A are
excluded from and shall not be assigned to Corporation pursuant
to this Agreement. Executive understands that it is only
necessary to list in Exhibit A the title and purpose of such
Developments but not details thereof. Executive also agrees not
to include, in whole or in part, any Developments listed in
Exhibit A in the materials he prepares for Corporation or
otherwise use, in whole or in part, any Developments listed in
Exhibit A in connection with his employment by Corporation unless
and until such items are licensed or assigned to Corporation
under separate written agreement.
20. Executive agrees and acknowledge that during his
employment with Corporation and for the Termination Period,
Executive will inform each prospective new employer he may have,
prior to accepting employment, of the existence of this
Agreement, and Executive shall provide each prospective employer
with a copy of this Agreement. Executive also agrees and
acknowledges that Corporation has the right to independently
contact any potential or actual future employer of his to
notify the future employer of his obligations under this
Agreement and provide such future employer with a copy of
this Agreement. Corporation shall also be entitled to notify
such actual or potential future employer of Corporation's
understanding of the requirements of this Agreement and what
steps, if any, Corporation intends to take to insure compliance
with or enforcement of this Agreement.
21. Executive also agrees and acknowledges that during his
employment with Corporation and for the Termination Period, Executive
will notify Corporation in writing of any subsequent engagement,
occupation or employment, whether as owner, employee, officer,
director, agent, consultant, independent contractor or the like,
and his duties and responsibilities with respect to any such
position. Executive agrees and acknowledge that violation of
this Section 21 shall entitle Corporation to bring suit
against him for specific performance and, if appropriate,
injunctive relief and damages, without Corporation being required
to show any actual damage or to post an injunction bond. Should
Corporation establish that Executive has violated the terms of
this Section 21 by failing to provide proper notice,
Corporation shall be deemed the prevailing party in any such
litigation and entitled to recover its attorneys' fees and costs
incurred therein.
EXHIBIT 10.3
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22. Executive understands that if he violates the terms of
this Agreement while he is employed by Corporation, Executive
will be subject to disciplinary action up to and including
discharge from his employment. Executive further agrees and
acknowledges that the covenants and undertakings contained in
this Agreement relate to matters that are of a special, unique
and extraordinary character and that a violation or breach of any
of the restrictive covenants in this Agreement will cause
irreparable harm to Corporation, the full amount of which will be
impossible to estimate or determine and which cannot be
adequately compensated. For that reason, Executive agrees that,
in addition to any other remedies, Corporation will be entitled
to an injunction, restraining order, writ of mandamus or other
equitable relief from any court of competent jurisdiction to
enforce this Agreement in the event of an actual, potential or
threatened breach of the restrictive covenants in this Agreement.
Without regard to whether Corporation seeks or is granted any
such equitable relief, Corporation will not be prejudiced in its
right to seek and be awarded damages for any breach of any
restrictive covenant in this Agreement. Executive understands
that the rights and remedies provided for in this Agreement are
cumulative and will be in addition to any rights and remedies
otherwise available to Corporation under applicable law.
Executive also agrees that the existence of any claim or cause of
action that Executive may have against Corporation, whether
predicated on this Agreement or otherwise, shall not constitute a
valid defense to the enforcement of the restrictive covenants
contained in this Agreement.
23. Executive further agrees and acknowledges that should
legal proceedings be initiated by Corporation to enforce the
restrictive covenants contained in Sections 13 through 16
of this Agreement, the duration of said covenants will commence
on the date of the entry of an order granting Corporation
injunctive, monetary or other relief from his actual or
threatened breach of said covenants and will remain in effect for
the periods of time provided for said covenants in Sections 13
through 16. Executive acknowledges that the purpose and effect
of the covenants contained in Sections 13 through 16 of
this Agreement would be frustrated by measuring the duration of
said covenants from the termination of this Agreement where
Executive fails to honor the covenants contained in Sections
13 through 16 of this Agreement until directed to do so by
court order.
24. This Agreement constitutes the entire agreement and
understanding between the parties with respect to Executive's
employment by the Corporation, and the other subject matters
addressed herein, expressly superseding all prior written, oral
or implied agreements and understandings. In executing this
Agreement, Executive has not relied on any promises or
representations other than those contained in this Agreement.
25. Any notice in writing required or permitted to be given
to the Executive hereunder shall be sufficiently given if served
on the Executive personally or mailed by registered mail return
receipt requested addressed to the Executive at his last home
address known to the Corporation. Any such notice mailed as
aforesaid shall be deemed to have been received by and given to
the Executive two business days following the date of mailing.
Any notice in writing required or permitted to be given to the
Corporation hereunder shall be given by registered mail postage
prepaid addressed to the President of the Corporation at its head
office. Any such notice mailed as aforesaid shall be deemed to
have been received by and given to the Corporation two business
EXHIBIT 10.3
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days following the date of mailing. Either party may at any time
give notice in writing to the other of any change of address of
the party giving such notice and from and after the giving of
such notice the address therein specified shall be deemed to be
the address of such party for the giving of notices hereunder.
26. Each of the parties hereto agrees to do and execute or
cause to be made, done or executed all such further and other
things, acts, deeds, documents, assignments and assurances as may
be necessary or reasonably required to carry out the intent and
purpose of this Agreement fully and effectually.
27. This Agreement shall be governed by and interpreted
under the laws of the State of Florida (venue, Boca Raton, Palm
Beach County).
28. All dollar amounts referred to in this Agreement are
expressed in U.S. dollars unless otherwise specifically provided
herein.
29. Save and except as provided in Section 12.6, the
benefits and obligations of this Agreement may not be assigned by
either party to any other person; provided, however, that the
Corporation may assign this Agreement to an affiliate or
subsidiary of the Corporation upon notice to the Executive.
Except as aforesaid, this Agreement shall enure to the benefit of
and be binding upon the parties hereto and their respective
successors and assigns, including, in the case of the Executive,
his heirs, executors and administrators.
29.1 For the purpose of this sub-section 29.1, all
capitalized terms used in this sub-section 29.2 and not defined
in this Agreement shall have the same meanings in this
sub-section 28.1 as in the share escrow agreement, made as
of the 12th day of February, 2001 (the "Escrow Agreement"), among
the Corporation, Equity Transfer Services Inc., and the Depositing
Securityholders, including the Executive. If a Change in Control
occurs and if, in respect of the Executive, a Triggering Event
subsequently occurs within two (2) years of the Change in Control,
the Corporation shall cause the Escrow Agent to immediately release
to the Executive the Deposited Certificates, if any, then held by
the Escrow Agent under the Escrow Agreement on behalf of the
Executive, being Deposited Certificates representing up to
500,000 Shares.
30. If any term, condition, or provision of this Agreement
shall be found to be illegal or unenforceable to any extent for
any reason, such provision shall be modified or deleted so as to
make the balance of this Agreement, as modified, valid and
enforceable to the fullest extent permitted by applicable law.
31. This Agreement may be executed in several counterparts
and all documents so executed shall constitute one agreement,
binding on all of the parties hereto, notwithstanding that all of
the parties did not sign the original or the same counterparts.
EXHIBIT 10.3
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32. This Agreement may be modified, amended, superseded, or
canceled, and any of the terms, covenants, representations,
warranties or conditions hereof may be waived, only by a written
instrument executed by the party or parties to be bound by any
such modification, amendment, supersession, cancellation, or
waiver.
33. The waiver by any party of any breach of any provision,
restrictive covenant or condition of this Agreement shall not be
construed as a waiver of any subsequent breach of such provision,
restrictive covenant or condition or of the breach of any other
provision, restrictive covenant or condition contained in this
Agreement.
34. Any provision of this Agreement which imposes an
obligation after termination or expiration of this Agreement
shall survive the termination or expiration of this Agreement and
be binding on Executive and Corporation.
35. The Executive acknowledges that:
(a) he has read and understood this Agreement; and
(b) has had an opportunity to obtain independent legal
advice in connection with this Agreement.
IN WITNESS WHEREOF the parties hereto have executed this
agreement as of the 1st day of August, 2001.
SIGNED, SEALED AND DELIVERED by )
XXXX XXXXXX in the )
presence of: )
)
________________________________ )
Name )
)
________________________________ )
Address ) ____________________________
) XXXX XXXXXX
________________________________ )
)
)
________________________________ )
Occupation
STORAGE @CCESS TECHNOLOGIES, INC.
------
By:_____________________________
Name:
_____
Title:
______
EXHIBIT 10.3
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Title:__________________________
Name:
Title:
Date:
EXHIBIT 10.3
