EXHIBIT 10.6
EMPLOYMENT AGREEMENT BY AND BETWEEN
CARE MANAGEMENT SCIENCE CORPORATION AND XXXXXX XXXX
WHEREAS Mr. Xxxxxx Xxxx (hereinafter "Executive") and Care Management
Science Corporation, a Pennsylvania corporation (hereinafter "Company") desire
and intend to enter into an employment relationship, all as set forth below;
NOW THEREFORE, the parties hereto, in consideration of the promises and
mutual covenants and agreements contained herein, voluntarily and knowingly, and
intending to be legally bound hereby, covenant and agree as follows:
1. EMPLOYMENT AND DUTIES.
(a) Company hereby employs Executive for the Term (as such
term is hereinafter defined) to render services to the Company as its Chief
Financial Officer. Executive shall have the overall charge of directing the
ongoing management and continued development and expansion of the Financial and
Administrative aspects of the Company and such other duties as may be directed
by the President from time to time. Executive shall be based within the
Philadelphia, PA metropolitan area, but may be required to travel from time to
time as part of his employment. Executive hereby accepts such employment and
agrees to render the services described herein, all on the terms and conditions
of this Agreement.
(b) Executive agrees to devote his entire working time,
attention and energies to the performance of the business of the Company and its
affiliates (as hereinafter defined); and Executive shall not, directly or
indirectly, alone or as a member of any partnership or other organization, or as
an officer, director or employee of any other corporation, partnership or other
organization, be actively engaged in or concerned with any other duties or
pursuits which, in the reasonable judgment of the Company, interfere with the
performance of his duties hereunder, or which, even if non-interfering, are
contrary to the best interests of the Company and its affiliates; PROVIDED,
HOWEVER, that Executive may invest his personal or family assets in such form or
manner as will not require any services on his part in the operation of the
affairs of the enterprises in which such investments are made and in which his
participation is solely that of a minority investor; FURTHER, PROVIDED, that the
Executive may engage in charitable, civic, fraternal or trade group activities,
so long as such activities shall not violate any provision of this Agreement or
interfere with his performance hereunder or compliance with the restrictions
contained herein. As used herein, the term "affiliate" means and includes any
person, corporation or other entity controlling, controlled by or under common
control with the Company.
2. TERM OF EMPLOYMENT.
The term of Executive's employment under this Agreement (the
"Term") will commence as of FEBRUARY 15, 1999 (the "Effective Date") and shall
continue through February 15, 2002 (the "Initial Term"). In the absence of at
least ninety (90) days advance written notice
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from either party to the other prior to the expiration of the Initial Term, this
Agreement shall automatically renew for an additional one (1) year period (an
"Extension Term") on the same terms and conditions as defined herein.
Thereafter, this Agreement shall continue to renew for additional one (1) year
period(s) on the same terms and conditions as defined herein in the absence of
at least ninety (90) days advance written notice from one party to the other
prior to the expiration of any Extension Term. For the purposes of this
Agreement, the Initial Term along with any Extension Term(s) shall be referred
to collectively, as the "Term".
3. COMPENSATION AND BENEFITS.
(a) As compensation for the services to be rendered by
Executive hereunder, including all services to any subsidiary of the Company,
the Company agrees to pay or cause to be paid to Executive, during the first
year of the term of his Employment hereunder, an annual base salary of $150,000
(the "Base Salary"). For each subsequent year of the Term, the Base Salary will
be reviewed annually by the Compensation Committee of the Board of Directors of
the Company. Executive's Base Salary shall be payable in such installments as is
the policy of the Company generally with respect to employees of the Company.
(b) In addition to his Base Salary, Executive shall be awarded
a stock option grant representing 96,719 shares, such award grant being attached
hereto as EXHIBIT 3(B) and incorporated by reference herein.
(c) Executive shall be awarded stock option grants under the
Company's performance-based Senior Management Incentive Stock Option Plan as
follows: option shares equal to 0.50% of the company's fully-diluted common
stock (at $2.59 per share) vesting in accordance with the performance-based
Senior Management Incentive Stock Option Plan in an "all-or-none" fashion at
December 31, 2000 (0.25%) and December 31, 2001 (0.25%) respectively upon the
attainment of performance goals as defined in the performance-based Senior
Management Incentive Stock Option Plan.
(d) Executive shall be eligible under any incentive plan,
stock option plan, bonus, profit participation, pension, group insurance or
other benefit plans (both qualified and non-qualified for federal tax purposes)
or other so-called "fringe" benefits, if any, which the Company generally
provides to its executives on the same terms and conditions, except that any
incentive compensation program for Executive will be reviewed by the
Compensation Committee of the Board of Directors of the Company.
(e) The Company shall pay or reimburse Executive for all
reasonable expenses actually incurred or paid by him during the Term in the
performance of his services under this Agreement, upon presentation of expense
statements or vouchers or such other supporting information as it reasonably may
require. For the purposes of this Agreement, "reasonable expenses" may include
Executive's actual expenses for required continuing professional education, so
long as Executive acts to keep those expenses to reasonable amount and so long
as those expenses do not exceed $1,000 per year in any event.
(f) The Company shall provide to Executive and the members of
his immediate family, medical and dental insurance covering its executives
generally and under the same terms and conditions.
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(g) Executive shall be eligible under any group life and/or
disability insurance covering its executives generally and under the same terms
and conditions.
(h) Executive shall be entitled to four weeks paid vacation
plus all federal holidays, in each calendar year, with an additional day accrued
per year of completed service up to a maximum of four weeks vacation.
4. CONFIDENTIALITY.
(a) Subject to the provisions below, Executive shall not,
during the Term of this Agreement, or at any time following the expiration or
termination of this Agreement, directly or indirectly, disclose or permit to be
known (other than (i) as is reasonably required in the regular course of his
duties, including disclosures to the Company's advisors and consultants, (ii) as
required by law or (iii) with the prior written consent of the Company), to any
person, firm corporation or entity, any confidential information acquired by him
during the course of or as an incident to, his employment or the rendering of
services hereunder, relating to the Company or any of its subsidiaries, or any
corporation, partnership or other entity owned or controlled, directly or
indirectly, by or controlling the Company or its subsidiaries. Such confidential
information shall include, but shall not be limited to, business affairs,
proprietary technology, trade secrets, patented or copyrighted processes,
research and development data, know-how, market studies and forecasts,
competitive analyses, pricing policies, employee lists, personnel policies, the
substance of agreements with customers, suppliers and others, marketing or
dealership arrangements, servicing and training programs and arrangements,
customer lists and any other documents embodying such confidential information.
This confidentiality obligation shall not apply to any confidential information
which becomes publicly available other than pursuant to a breach of this Section
4 by Executive or which was obtained from a third party not acquiring the
information under an obligation of confidentiality from the disclosing party and
intended for the benefit of the Company.
(b) All information and documents relating to the Company and
its affiliates as hereinabove described shall be the exclusive property of the
Company and upon termination of Executive's employment with the Company, all
documents, records, reports, writings and other similar documents containing
confidential information, including copies thereof, then in Executive's
possession or control shall be returned and left with the Company.
5. NON-COMPETITION.
As a condition precedent to this Agreement, and in
consideration for this Employment Agreement and the associated Stock Option
Grant, Executive shall sign, contemporaneously with this Agreement, and abide by
a Non-Competition Agreement in the form attached hereto as EXHIBIT 5, (the
"Non-Competition Agreement").
6. EQUITABLE REMEDIES AND ENFORCEABILITY OF COVENANTS.
(a) If Executive commits a breach, or threatens to commit a breach, of any of
the provisions hereof or under the Non-Competition or Invention Assignment
Agreements, it is acknowledged and agreed that any such breach or threatened
breach will cause irreparable injury
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to the Company and that money damages will not provide an adequate remedy to the
Company.
(b) If any of the covenants contained herein or under the
Non-Competition or Invention Assignment Agreements, or any part hereof or
thereof, is hereafter construed to be invalid or unenforceable, the same shall
not affect the remainder of the covenant or covenants, which shall be given full
effect without regard to the invalid portions.
(c) If any of the covenants contained herein or under the
Non-Competition or Invention Assignment Agreements, or any part hereof or
thereof, is held to be unenforceable because of the duration of such provision
or the area covered thereby, the parties agree that the court making such
determination shall have the power to reduce the duration, scope and/or areas of
such provision and, in its reduced form, such provision shall then be
enforceable.
(d) The existence of any claim or cause of action by Executive
against the Company or any affiliate of the Company shall not constitute a
defense to the enforcement by the Company of the covenants contained herein, but
such claim or cause of action shall be litigated separately.
7. TERMINATION BY THE COMPANY.
The Company may terminate Executive's employment under this
Agreement upon written notice to Executive if any one or more of the following
shall occur:
(a) There exists Cause for termination. For the purposes of
this Agreement, the term "Cause" means: (i) the willfull failure by Executive to
perform his duties or obligations hereunder (other than such failure resulting
from Executive's incapacity due to illness or leaves of absence approved by the
Company) PROVIDED such failure remains uncured for a period of 10 business days
after written notice describing the same is received by Executive; (ii)
Executive's conviction of any felonious crime or offense; (iii) the unauthorized
securing by Executive of any personal profit in connection with the business of
the Company or any of its subsidiaries; (iv) use of any unlawful controlled
substance under any circumstances or the use of alcohol to the extent that it
interferes with the performance of Executive's duties hereunder, or which, in
the good faith opinion of the Company, are harmful to the Company; (v) the
commission of any acts involving dishonesty or fraud, which, in the good faith
opinion of the Company, are harmful to the Company; or (vi) any breach by
Executive of the terms of Section 4 of this Agreement or under the
Non-Competition or Nondisclosure, Proprietary Information and Invention
Assignment Agreements; PROVIDED such breach continues uncured for 5 business
days after written notice of such breach has been received by Executive from the
Company.
(b) Executive's death during the Term; PROVIDED, HOWEVER, that
Executive's legal representatives shall be entitled to receive his Base Salary
through the last day of the second month after the month in which his death
occurs, along with any other compensation and benefits to which Executive and
his legal representatives may be entitled under applicable plans, programs and
agreements of the Company, including but not limited to, the proceeds of any
applicable life insurance policies through the date of death.
(c) Executive shall become physically or mentally disabled so
that he is unable to perform his services hereunder for a period of 90
consecutive days or 120 non-consecutive days in any 365 day period.
Notwithstanding such disability, the Company shall
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continue to pay Executive his Base Salary through the date of such termination,
along with any other compensation and benefits to which Executive and his legal
representatives may be entitled under applicable plans, programs and agreements
of the Company, including but not limited to, the proceeds of any applicable
disability insurance policies also shall be paid through the date of such
termination.
(d) At the Company's sole discretion so long as Company pays
to Executive an amount equal to six (6) months Base Salary along with any other
compensation and benefits to which Executive may be entitled under applicable
plans, PRO RATED through the date of Executive's termination of employment (the
sum of these amounts collectively defines the "Severance Amount"). Payment of
such Severance Amount, if required, shall be made at the Company's option
either: (i) in equal monthly installments over six (6) months, or (ii) in a
lump-sum payment promptly following the termination of Executive's employment
equal to the then present value using a discount rate per annum determined by
reference to the discount rate then published by the Pension Benefit Guaranty
Corporation of the Severance Amount. For the purposes of this Agreement, the
decision by the Company not to renew this Agreement at the end of the Initial
Term or any Extension Term shall be considered to be "At the Company's sole
discretion" and Executive shall receive the Severance Amount on the terms and
conditions as defined herein. By contrast, any decision by the Executive not to
renew this Agreement at the end of the Initial Term or any Extension Term shall
make Executive ineligible for any Severance Amount. Notwithstanding the
foregoing, in the event that the Company sells all or substantially all of its
assets or the Company is acquired by or merges with another company resulting in
a "Change of Control" (defined herein as any one stockholder, other than Xxxxx
X. Xxxxxxx, M.D., Ph.D., becoming a beneficial owner -- as defined in Rule 13-d
under the Exchange Act -- directly or indirectly, of securities of the Company
representing more than 50% of the Common Stock of the Company or the combined
voting power of the Company's then outstanding securities, and Executive is
terminated without cause within nine (9) months (whether before or after) of the
closing of the transaction, Executive shall receive twelve (12) months Base
Salary rather than the 6 months described above, but otherwise subject to the
same terms and conditions concerning payment.
8. INVENTIONS DISCOVERED BY EXECUTIVE.
As a condition precedent to this Agreement, Executive shall
sign, contemporaneously with this Agreement, an Invention Assignment Agreement
in the form attached hereto as EXHIBIT 8 (the "Invention Assignment Agreement").
9. REPRESENTATIONS AND AGREEMENTS OF EXECUTIVE.
(a) Executive represents and warrants that he is free to enter
into this Agreement and to perform the duties required hereunder, and that there
are no employment contracts or understandings, restrictive covenants or other
restrictions, whether written or oral, preventing the performance of his duties
hereunder or which would be harmful to the Company.
(b) Executive agrees to submit to a medical examination and to
cooperate and supply such other information and documents as may be required by
any insurance company in connection with the Company's obtaining life insurance
on the life of Executive, if the Company
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so desires, or any other type of insurance or fringe benefits as the Company
shall determine from time to time to obtain.
10. ARBITRATION.
Any controversy or claim arising out of or relating to this
Agreement (or breach thereof) shall be settled by arbitration in Philadelphia,
Pennsylvania, in accordance with the rules then existing of the American
Arbitration Association (three arbitrators), and judgment upon the award
rendered may be entered in any court having jurisdiction thereof.
Notwithstanding the foregoing, the Company, at its sole option, shall be
entitled to seek and obtain equitable relief from any court of competent
jurisdiction, including, without limitation, temporary, preliminary and
permanent injunctive relief and specific performance with respect to alleged
violations of Sections 4 and 5 of this Agreement, Section 1 of the
Non-Competition Agreement or under the Invention Assignment Agreement, and the
Company's pursuit of the remedies described in Section 6 hereof in connection
therewith. The parties shall be free to pursue any remedy before the arbitration
tribunal that they shall be otherwise permitted to pursue in a court of
competent jurisdiction. The award of the arbitrators shall be final and binding
and may be enforced by any court as if it were a judgment of that court, and may
include interest at a rate or rates considered just under the circumstances by
the arbitrators. The substantive law of the Commonwealth of Pennsylvania shall
be applied by the arbitrators to the resolution of the dispute, provided that
the arbitrators shall base their decision on the express terms, covenants and
conditions of this Agreement. The arbitrators shall be required to produce a
written decision setting forth the reasons for the decision or award to be made.
The parties agree that the arbitrators shall have no power to alter or modify
any express provision of this Agreement or to render any award which, by its
terms, effects any such alteration or modification. Upon written demand to any
party to the arbitration for the production of documents and things reasonably
related to the issues being arbitrated, the party upon whom such demand is made
shall promptly produce, or make available for inspection and copying, such
documents and things without the necessity of any action by the arbitrators. The
party which does not prevail in the arbitration shall be responsible for all
fees and expenses incurred, including, without limitation, reasonable attorneys'
fees, for both parties.
11. NOTICES.
All notices, requests, consents and other communications
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given if sent by private overnight mail service
(delivery confirmed by such service), registered or certified mail (return
receipt requested and received), telecopy (confirmed receipt by return fax from
the receiving party) or delivered personally, as follows (or to such other
address as either party shall designate by notice in writing to the other in
accordance herewith:
IF TO THE COMPANY:
Care Management Science Corporation
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
ATTENTION: PRESIDENT
Telephone: 215/000-0000
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Fax: 215/387-9406
IF TO EXECUTIVE:
Mr. Xxxxxx Xxxx
0000 Xxxxxxxxxxx Xxxx
Telephone: 000-000-0000
Fax: 000-000-0000
12. GENERAL.
(a) This Agreement shall be governed by and construed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania
applicable to agreements made and to be performed entirely in Pennsylvania.
(b) This Agreement and the Exhibits attached hereto set forth
the entire agreement and understanding of the parties relating to the subject
matter hereof, and supersedes all prior agreements, arrangements and
understandings, written or oral, relating to the subject matter hereof. No
representation, promise or inducement has been made by either party that is not
embodied in this Agreement or any of the agreements referred to herein, and
neither party shall be bound by or liable for any alleged representation,
promise or inducement not so set forth.
(c) This Agreement may be amended, modified, superseded,
canceled, or extended, and the terms or covenants hereof may be waived, only by
a written instrument executed by the parties hereto, or in the case of a waiver,
by the party waiving compliance. The failure of a party at any time or times to
require performance of any provision hereof shall in no manner affect the right
at a later time to enforce the same. No waiver by a party of the breach of any
term or covenant contained in this Agreement, whether by conduct or otherwise,
or any one or more continuing waivers of any such breach, shall constitute a
waiver of the breach of any other term or covenant contained in this Agreement.
(d) This Agreement shall be binding upon the legal
representatives, heirs, distributes, successors and assigns of the parties
hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
CARE MANAGEMENT SCIENCE CORPORATION
By: /s/ Xxxxx X. Xxxxxxx 2/4/99
--------------------------------------- --------------
Name: Xxxxx X. Xxxxxxx, M.D. Date
Title: Chief Executive Officer
EXECUTIVE
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/s/ Xxxxxx Xxxx 2/8/99
--------------------------------- ---------------------
Mr. Xxxxxx Xxxx Date
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EXHIBIT 5
CARE MANAGEMENT SCIENCE CORPORATION NON-COMPETITION AGREEMENT
Care Management Science Corporation, a Pennsylvania
corporation (the "Company") and Xxxxxx Xxxx ("Executive"), contemporaneously
with the execution of this Agreement are entering into an Employment Agreement
of even date herewith (the "Employment Agreement"), pursuant to which, among
other things, the Executive will be employed by the Company in the capacity of
its Chief Financial Officer. Capitalized terms used in this Agreement and not
otherwise defined herein shall have the meanings given such terms in the
Employment Agreement. In addition to the Company's desire to engage the
Executive and the Executive's desire to serve the Company, under the terms and
conditions of the Employment Agreement, the Executive understands that the
Company wishes to ensure that the Executive does not compete with the Company,
on the terms and conditions specified below and in the Employment Agreement, in
the event the Executive's employment with the Company is terminated.
In consideration of the Company's employment of me and in
order to induce the Company to employ me, the Company and Executive hereby agree
as follows:
1. NON-COMPETITION; APPLICATION AND DURATION;
NON-INTERFERENCE. The Executive will not, during the term of the Executive's
employment by the Company and for a period of two years following the
termination of employment (the term of Executive's employment and the two years
following termination, the "Non-Competitive Period"):
(a) as owner, partner, joint venturer, stockholder,
employee, broker, agent, principal, trustee, corporate officer, director,
licensor, or in any capacity whatsoever engage in, become financially interested
in, be employed by, or render any consultation or business advice with respect
to any business which business is engaged in by the Company on the date hereof
or during the course of Executive's employment or which business ("Company
Business") is engaged in development or commercialization of any technologies or
products related to the development of software and databases that transform
data into tools to be used by managers in the health care information industry
or the provision of services with respect thereto (collectively, "Clinical
Decision Support"), in any geographic area where, during the time of Executive's
employment, the business of the Company or any of its subsidiaries is being, had
been or was proposed to be, conducted in any manner whatsoever, which
technologies, products or services are (i) competitive with any Clinical
Decision Support or other Company Business technology or application thereof or
products based thereon designed, marketed, announced, leased or sold by the
Company or any of its subsidiaries during the term of employment or at the time
of the termination of the Executive's employment; or (ii) substantially similar
to any technology or service involving Clinical Decision Support or other
Company Business which the Company was designing, marketing, announcing, leasing
or selling or proposing to design, market, lease or sell during the term of
Executive's employment; or (iii) substantially similar to any technology or
service involving Clinical Decision Support of which the Executive had knowledge
at the time of the termination of the Executive's employment that the Company
was proposing to design, market, announce, lease or sell; PROVIDED, HOWEVER,
that the Executive may own any securities of a corporation which is engaged in
such business and is publicly owned and
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traded but in amount not to exceed at any one time one percent (1%) of any class
of stock or securities of such company; PROVIDED FURTHER that Executive is not
personally engaged in any way, directly or indirectly, in any scientific or
business activity within such entity, which competes with the Company as
described above.
(b) during the Non-Competitive Period, request or
cause any suppliers or customers with whom the Company or any of its
subsidiaries has a business relationship to cancel or terminate any such
business relationship with the Company or any of its subsidiaries or solicit,
interfere with or entice from the Company any employee (or former employee) of
the Company;
(c) solicit, interfere with, hire, offer to hire,
persuade or induce any person who is or was an officer, employee, customer or
supplier of the Company or any of its subsidiaries or affiliates to discontinue
his relationship with the Company or any of its subsidiaries or affiliates or
accept employment by or enter into contractual relations for compensation with
any other entity or person, or approach any such employee of the Company or any
of its subsidiaries or affiliates for any such purpose or authorize or knowingly
approve the taking of any such actions by any other individual or entity. The
term "affiliate" shall mean any person or entity that directly or indirectly
through one or more intermediaries, controls or is controlled by, or is under
common control with, the Company.
2. MISCELLANEOUS.
(a) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(b) This Agreement, together with the Employment Agreement,
supersedes all prior agreements, written or oral, between the Executive and the
Company relating to the subject matter of this Agreement. This Agreement may not
be modified, changed or discharged in whole or in part, except by an agreement
in writing signed by the Executive and the Company. The Executive agrees that
any change or changes in his/her duties, salary or compensation after the
signing of this Agreement shall not affect the validity or scope of this
Agreement.
(c) This Agreement will be binding upon the Executive's heirs,
executors and administrators and will inure to the benefit of the Company and
its successors and assigns.
(d) No delay or omission by either party in exercising any
right under this Agreement will operate as a waiver of that or any other right.
A waiver or consent given by either party on any one occasion is effective only
in that instance and will not be construed as a bar to or waiver of any right on
any other occasion.
(e) The Executive expressly consents to be bound by the
provisions of this Agreement for the benefit of the Company or any parent,
subsidiary or affiliate thereof to whose employ the Executive may be transferred
without the necessity that this Agreement be re-signed at the time of such
transfer.
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(f) The restrictions contained in this Agreement are necessary
for the protection of the business and goodwill of the Company and are
considered by the Executive to be reasonable for such purpose. The Executive
agrees that any breach of this Agreement is likely to cause the Company
substantial and irrevocable damage and therefore, in the event of any such
breach, the Executive agrees that a remedy at law, in addition to such other
remedies which may be available, may be inadequate.
(g) This Agreement is governed by and will be construed as a
sealed instrument under and in accordance with the laws of the Commonwealth of
Pennsylvania. Any action, suit, or other legal proceeding which is commenced to
resolve any matter arising under or relating to any provision of this Agreement
shall be arbitrated or commenced in a court, as and to the extent set forth in
the Employment Agreement.
The Executive understands that nothing in this Agreement shall
otherwise affect the Executive's obligations under the Employment Agreement or
the Invention Assignment Agreement, each dated FEBRUARY 15, 1999 between the
Company and Executive.
Dated: 2/8/99 By: /s/ Xxxxxx Xxxx
------------------------- ----------------------
Xxxxxx Xxxx
CARE MANAGEMENT SCIENCE CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
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EXHIBIT 8
CARE MANAGEMENT SCIENCE CORPORATION INVENTION ASSIGNMENT AGREEMENT
Care Management Science Corporation, a Pennsylvania
corporation (the "Company") and Xxxxxx Xxxx ("Executive"), contemporaneously
with the execution of this Agreement are entering into an Employment Agreement
of even date herewith (the "Employment Agreement"), pursuant to which, among
other things, the Executive will be employed by the Company in the capacity of
its Chief Financial Officer. Capitalized terms used in this Agreement and not
otherwise defined herein shall have the meanings given such terms in the
Employment Agreement. In addition to the Company's desire to engage the
Executive and the Executive's desire to serve the Company, under the terms and
conditions of the Employment Agreement, the Executive understands that the
Company wishes to ensure all right, title and interest in and to any inventions
of Executive made during the term of his employment by the Company are and
remain the exclusive property of the Company.
In consideration for, and in order to induce my
employment by the Company, I hereby agree as follows:
1. INVENTION ASSIGNMENT.
Whereas I will be participating in the preparation, writing,
creation, or development of certain business ideas, strategies, analyses,
reports, software, computer programs or other business activities collectively
referred to as the "Work";
(a) As an employee of the Company, any and all materials
created by me relating to the Work shall be considered as a "work made for
hire". Without limiting the foregoing, I hereby grant, transfer, assign, and
convey to the Company, its successors and assigns, the entire title, right,
interest, ownership and all subsidiary rights in and to the Work, all
intellectual property rights relating to the Work, and all copyrights, trade or
service marks, patents or other evidence of ownership and title pertaining to
the Work, including but not limited to the right to secure copyright, trade or
service xxxx or patent registration(s) in the Company' name as claimant and the
right to secure renewals, reissues, and extensions of any such filings in the
United States of America or any other country.
(b) I acknowledge that the Company, in its sole discretion,
shall determine whether copyright(s), trade or service xxxx(s) or patent
registration(s) in the Work shall be filed and/or preserved and maintained or
registered in the United States of America or any other country.
(c) I confirm that by this instrument, the Company and its
successors and assigns shall own the entire title, right and interest in and to
the Work, including the right to reproduce, display publicly, prepare derivative
Works from or distribute by sale, rental, lease lending or by other transfer of
ownership even if the Work does not constitute a "Work made for hire" as defined
in 17 U.S.C. Sections 101 and 201(b).
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(d) I agree to take all actions and cooperate as is necessary
to protect the copyrights or other evidence of title in and to the Work and
further agree to execute any document(s) that may be necessary to perfect the
Company' ownership of copyrights, trade or service marks, patent(s) or other
evidence of ownership and title in the Work and the registration thereof,
without further compensation by the Company.
(e) I agree that all terms of this Agreement are applicable to
each portion or part of the Work, as well as to the Work in its entirety.
(f) Notwithstanding anything contained herein, the terms of
this Agreement shall not apply to any invention for which no equipment,
supplies, facility, time, proprietary or trade secret information of the Company
was used and which can be demonstrated was developed entirely on my own time, at
my own expense and which:(i) does not relate in any way to the business of the
Company or to the Company's actual or demonstrably anticipated expansion
research or development; and (ii) which does not result from any Work performed
by me for the Company.
2. REPRESENTATIONS OF EXECUTIVE.
Executive represents and warrants that he is free to enter
into this Agreement and that there are no preceding claims or understandings,
restrictive covenants or other restrictions, whether written or oral, preventing
the performance of his duties hereunder.
3. MISCELLANEOUS.
(a) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(b) This Agreement, together with the Employment and
Non-Competition Agreements, supersedes all prior agreements, written or oral,
between the Executive and the Company relating to the subject matter of this
Agreement. This Agreement may not be modified, changed or discharged in whole or
in part, except by an agreement in writing signed by the Executive and the
Company. The Executive agrees that any change or changes in his duties, salary
or compensation after the signing of this Agreement shall not affect the
validity or scope of this Agreement.
(c) This Agreement will be binding upon the Executive's heirs,
executors and administrators and will inure to the benefit of the Company and
its successors and assigns.
(d) No delay or omission by either party in exercising any
right under this Agreement will operate as a waiver of that or any other right.
A waiver or consent given by either party on any one occasion is effective only
in that instance and will not be construed as a bar to or waiver of any right on
any other occasion.
(e) The Executive expressly consents to be bound by the
provisions of this
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Agreement for the benefit of the Company or any parent, subsidiary or affiliate
thereof to whose employ the Executive may be transferred without the necessity
that this Agreement be re-signed at the time of such transfer.
(f) The restrictions contained in this Agreement are necessary
for the protection of the Company and are considered by the Executive to be
reasonable for such purpose. The Executive agrees that any breach of this
Agreement is likely to cause the Company substantial and irrevocable damage and
therefore, in the event of any such breach, the Executive agrees that a remedy
at law, in addition to such other remedies which may be available, may be
inadequate.
(g) This Agreement is governed by and will be construed as a
sealed instrument under and in accordance with the laws of the Commonwealth of
Pennsylvania. Any action, suit, or other legal proceeding which is commenced to
resolve any matter arising under or relating to any provision of this Agreement
shall be arbitrated or commenced in a court, as and to the extent set forth in
the Employment Agreement.
The Executive understands that nothing in this Agreement shall
otherwise affect the Executive's obligations under the Employment Agreement or
the Non-Competition Agreement between the Company and Executive.
By my signature below, I hereby agree to the above.
By: /s/ Xxxxxx Xxxx 2/8/99
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Xxxxxx Xxxx: Date
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