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EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("this Agreement") is made and effective this
31st day of January 1998, by and between XXXXXX TECHNOLOGIES, INC., a Florida
corporation located at 000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, 00000
("Company"), and Xxxxx X. Xxxxx, residing at 0000 Xxxx Xxxx Xxxxxx, Xxxxxxxxxx,
XX 00000 ("Employee").
WITNESSETH:
WHEREAS, Company believes it is in Company's best interest to employ
Employee, and Employee desires to be employed by Company; and
WHEREAS, Company and Employee desire to set forth the terms and
conditions on which Employee shall be employed by and provide his services to
Company;
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto, intending to be legally bound, do hereby agree
as follows:
1. Employment. Company hereby employs Employee in its business as
President and Chief Operating Officer, and Employee hereby accepts such
employment, all upon the terms and conditions hereinafter set forth.
2. Term. Unless sooner terminated pursuant to the provisions of
this Agreement, the term of employment under this Agreement shall be for as long
as Employee remains employed hereunder, with Employee acknowledging that he is
an at will employee ("Employment Period").
3. Salary and Base Compensation. Employee shall be entitled to
receive salary during the Employment Period at the rate of Two Hundred Thousand
and 100/00 Dollars ($200,000.00) per annum, as such may be increased pursuant to
Section 9 hereof (the "Base Salary"). In addition to the Base Salary paid to
Employee during the Employment Period, Employee shall be entitled to receive the
Benefits, Bonus Compensation, and Stock Option (as those terms are hereinafter
defined) during the Employment Period. The Base Salary shall be payable biweekly
in accordance with the current normal payroll policies of Company, which
policies may be changed by Company from time to time in its sole discretion, and
shall be subject to all appropriate withholding taxes.
4. Business Expenses and Reimbursements. Employee shall be
entitled to reimbursement by the Company for ordinary and necessary business
expenses incurred by Employee in the performance of his duties for the Company,
which types of expenditures shall be determined and approved by the Company, and
further provided that:
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(a) Each such expenditure is of a nature qualifying it as a
proper deduction on the Federal and State income tax returns of Company as a
business expense and not as deductible compensation to Employee; and
(b) Employee furnishes Company with adequate records and other
documentary evidence required by federal and State statutes and regulations for
the substantiation of such expenditures as deductible business expenses of
Company and not as deductible compensation to Employee, as well as any other
documentation reasonably requested by Company.
5. Benefits. Employee shall be entitled to receive the following
Benefits during the entire Employment Period:
(a) Employee agrees that the Base Salary, Bonus Compensation,
the Stock Option, and the Benefits and the other compensation provided in
accordance with this Agreement and the offer letter dated January 31, 1998, are
the sole and exclusive compensation of Employee for his duties hereunder.
(b) Continuing throughout the Employment Period:
(i) Employee shall receive all of the employee
benefits including, without limitation, pension, disability, profit sharing and
retirement benefits, provided at any time by Company to any of its employees in
the sole and absolute discretion of the Board of Directors of the Company (the
"Board");
(ii) The Company shall provide health insurance
providing full hospital, medical and dental coverage pursuant to Company plans
in effect from time to time for Employee and each of Employee's dependents at
similar expense to Employee or such dependents as charged to other employees of
the Company.
6. Vacation. Employee shall be entitled to vacation in accordance
with the vacation policy of the Company in effect from time to time.
7. Stock Options. In addition to Employee's Base Salary, Benefits
and Bonus Compensation, Employee shall be granted a qualified incentive stock
option to purchase a number of shares equal to One Hundred Twenty-Three Thousand
Seventy-Seven (123,077) at an exercise price no greater than $3.25 per share,
which options will vest over a four-year period. In addition, Employee shall be
granted a nonqualified stock option to purchase a number of shares equal to
Eighty-Six Thousand Nine Hundred Twenty-Three (86,923) at an exercise price no
greater than $2.50 per share, which option will vest over a two-year period. The
options shall be granted to Employee pursuant to an Option Agreement
satisfactory as to its other terms to the Company, and all of these grants and
terms are subject to the approval of the Board of Directors.
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8. Registration Rights. In the event Company registers common
stock held by other employees of Company, then the Company shall also register a
prorata portion of the stock held by Employee.
9. Compensation Review. The Chief Executive Officer ("CEO")
and/or Board shall from time to time, no less frequently than annually, review
Employee's compensation and may (in his sole discretion) increase, but not
decrease, the compensation provided for in Section 3 hereof. Any such increase
in compensation shall be valid only if in writing, executed by the CEO, and such
writing shall constitute an amendment solely to the payments to be made to
Employee under this Agreement, without waiver or modification of any other
provision hereof.
10. Invention Assignment and Confidentiality Agreement. Against
the execution and delivery of this Agreement, Employee shall enter into an
agreement in the form of Exhibit "A" hereto (the "Invention Assignment and
Confidentiality Agreement").
11. Non-Competition Agreement. Against the execution and delivery
of this Agreement, Employee shall enter into a non-competition and
non-solicitation agreement (in the form of Exhibit "B" hereto) (the
"Non-Competition Agreement") which also, notwithstanding the at will nature of
the employment, provides for a severance benefit under certain circumstances.
12. No Other Compensation or Benefits. Employee agrees that the
compensation set forth in this Agreement is the sole and exclusive compensation
of Employee for his duties hereunder, and that he shall have no rights to
receive any other compensation or benefits of any nature.
13. Duties. During the Employment Period:
(a) Employee shall furnish all manner of services in
connection with his position as President and Chief Operating Officer or as
otherwise designated by the CEO including, without limitation, primary
responsibility for such duties as shall be deemed by the CEO appropriate to
carry out the policies and programs of the Board and as from time to time may be
delegated or assigned to him/her by the Board;
(b) Employee shall report directly to the CEO in the
performance of all his duties herein.
(c) Employee shall comply with all Company policies for the
employees as such policies may exist from time to time.
(d) Employee shall devote his entire time, energy and skill
to the service of Company and the promotion of Company's interests, and shall
use his best efforts in the performance of his/her services hereunder. The
parties agree that Employee may not, during the Employment Period, be engaged in
any other business activity whether or not such activity is pursued for gain,
profit, or other pecuniary advantage including, without limitation, management
or management consulting activities; provided, however, Employee may invest his
personal assets
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in businesses where the form or manner of such investment will not require
services on the part of Employee conflicting with the duties of Employee under
this Agreement and in which his participation is solely that of a passive
investor. Employee agrees to abide by all rules and regulations established from
time to time by the CEO and/or the Board; and all commissions, fees or other
income earned and received by Employee, if any, in furtherance of the business
of Company, or its affiliates or from any other business or financial
opportunity or endeavor in which Employee is an active participant and not a
passive investor, shall be accepted by Employee for the account of Company, and
shall be remitted to Company within three (3) days of Employee's receipt
thereof.
14. Termination. The Employer may, in its sole discretion,
terminate this Agreement for any reason, subject to the severance obligation
outlined in the Non-Competition Agreement. In the event of termination of
employment by either party, subject to compliance with the Non-Competition
Agreement, Employee shall be entitled to distributions pursuant to the severance
provisions more fully set forth in the Non-Competition Agreement and to all Base
Salary which is fully accrued.
15. Surrender of Records. Upon the termination of the Employee's
employment hereunder, for any reason whatsoever, and in addition to such other
actions as may be reasonably required by Employer, the Employee agrees to
surrender to the Employer, in good condition, any record or records kept by
him/her containing the names, addresses, and other information with regard to
customers or potential customers of the Employer which have been served by the
Employee.
16. Entire Agreement. This Agreement represents the entire
understanding and agreement between the parties with respect to the subject
matter hereof, and supersedes all other negotiations, understandings and
representations (if any) made by and between such parties.
17. Amendments. The provisions of this Agreement may not be
amended, supplemented, waived or changed orally, but only by a writing signed by
the party as to whom enforcement of any such amendment, supplement, waiver or
modification is sought and making specific reference to this Agreement.
18. Assignments. Employee shall not assign his rights and/or
obligations hereunder.
19. Binding Effect. All of the terms and provisions of this
Agreement, whether so expressed or not, shall be binding upon, inure to the
benefit of, and be enforceable by the parties and their respective
administrators, executors, legal representatives, heirs, successors and
permitted assigns.
20. Severability. If any part of this Agreement or any other
Agreement entered into pursuant hereto is contrary to, prohibited by or deemed
invalid under applicable law or regulation, such provision shall be inapplicable
and deemed omitted to the extent so contrary, prohibited or invalid, but the
remainder hereof shall not be invalidated thereby and shall be given full force
and effect so far as possible.
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21. Survival. Notwithstanding anything to the contrary herein, the
provisions of Sections 10 through 28 (inclusive) shall survive and remain in
effect in accordance with their respective terms in the event the employment is
terminated.
22. Waivers. The failure or delay of Company at any time to
require performance by Employee of any provision of this Agreement, even if
known, shall not affect the right of Company to require performance of that
provision or to exercise any right, power or remedy hereunder, and any waiver by
Company of any breach of any provision of this Agreement should not be construed
as a waiver of any continuing or succeeding breach of such provision, a waiver
of the provision itself, or a waiver of any right, power or remedy under this
Agreement. No notice to or demand on Employee in any case shall, of itself,
entitle such party to any other or further notice or demand in similar or other
circumstances.
23. Specific Performance. Employee acknowledges that the services
to be rendered by Employee hereunder are extraordinary and unique and are vital
to the success of the Company, and that damages at law would be an inadequate
remedy for any breach or threatened breach of this Agreement by Employee.
Therefore, in the event of a breach or threatened breach by Employee of any
provision of this Agreement, then Company shall be entitled, in addition to all
other rights or remedies, to injunctions restraining such breach, without being
required to show any actual damage or to post any bond or other security.
24. Notices. All notices, requests, consents and other
communications required or permitted under this Agreement shall be in writing
(including telex and telegraphic communication) and shall be (as elected by the
person giving such notice) hand delivered by messenger or courier service,
telecommunicated, or mailed (airmail if international) by registered or
certified mail (postage prepaid), return receipt requested, to the addresses
listed above or to such other address as any party may designate by notice
complying with the terms of this Section. Each such notice shall be deemed
delivered (a) on the date delivered if by personal delivery, (b) on the date
telecommunicated if by telegraph, (c) on the date of transmission with confirmed
answer back if by telex or telefax, and (d) on the date upon which the return
receipt is signed or delivery is refused or the notice is designated by the
postal authorities as not deliverable, as the case may be, if mailed.
25. Jurisdiction and Venue. The parties acknowledge that a
substantial portion of negotiations, anticipated performance and execution of
this Agreement occurred or shall occur in Palm Beach County, Florida, and that,
therefore, without limiting the jurisdiction or venue of any other federal or
state courts, each of the parties irrevocably and unconditionally (a) agrees
that any suit, action or legal proceeding arising out of or relating to this
Agreement may be brought in the courts of record of the State of Florida in Palm
Beach County or the court of the United States, Southern District of Florida;
(b) consents to the jurisdiction of each such court in any such suit, action or
proceeding; (c) waives any objection which it may have to the laying of venue of
any such suit, action or proceeding in any of such courts; and (d) agrees that
service of any court paper may be effected on such party by mail, as provided in
this Agreement, or in such other manner as may be provided under applicable laws
or court rules in said state.
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26. Remedies Cumulative. No remedy herein conferred upon any party
is intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
otherwise. No single or partial exercise by any party of any right, power or
remedy hereunder shall preclude any other or further exercise thereof.
27. Employee Representations, Warranties, and Acknowledgments.
Employee represents and warrants to Company that she is fully empowered to enter
and perform his/her obligations under this Agreement and, without limitation,
that she is under no restrictive covenants to any person or entity that will be
violated by his entering into and performing this Agreement, and that this
Agreement constitutes the valid and legally binding obligation of Employee
enforceable in accordance with its terms. The execution and delivery of this
Agreement by Employee has been duly authorized by all necessary action. Employee
shall indemnify Company upon demand for and against any and all judgments,
losses, claims, damages, costs (including without limitation all legal fees and
costs, even if incident to appeals) incurred or suffered by any of them as a
result of the breach of the representations and warranties made in this section,
or as a result of the failure of the acknowledgment made in this section to be
true and correct at all times.
28. Governing Law. This Agreement and all transactions
contemplated by this Agreement shall be governed by, and construed and enforced
in accordance with, the internal laws of the State of Florida without regard to
principles of conflicts of laws.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXX TECHNOLOGIES, INC.
Its: CEO: /s/ Xxxxx Xxxxxx
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EMPLOYEE: /s/ Xxxxx X. Xxxxx
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EXHIBIT LIST
Exhibit A -Invention Assignment and Confidentiality Agreement
Exhibit B -Non-Solicitation and Non-Compete Agreement
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EXHIBIT A TO EMPLOYMENT AGREEMENT
INVENTION ASSIGNMENT AND CONFIDENTIALITY AGREEMENT
THIS AGREEMENT is entered into this 31st day of January, 1998, by and between
Xxxxxx Technologies, Inc. (DTI), and Xxxxx X. Xxxxx (hereinafter referred to as
"Employee") for and in consideration of Employee's continued employment or
engagement by DTI and the compensation that Employee shall receive during
Employee's employment or engagement, the parties agree as follows:
1. Both during and after Employee's employment or engagement:
a. Employee shall not disclose to anyone outside DTI any
Confidential Information. "Confidential Information" is
defined as information which has not been made publicly
available by DTI or the third party owner of such information,
and
1. Which was developed by DTI, and relates to DTI's past,
present, and future business, including but
not limited to developments (defined below,
technical data, specifications, designs,
concepts, discoveries, copyrights,
improvements, product plans, research and
development, personal information, personnel
information, financial information, customer
lists, leads, and/or marketing programs;
2. All documents marked as confidential and/or continuing such
information; and/or
3. All information DTI has acquired or received from a third
party in confidence.
b. Employee shall use Confidential Information only for DTI's
business purposes; and
c. Employee shall use any information received in confidence by
DTI from any third party only as permitted by written
agreement between DTI and the third party; and
d. Employee shall not be permitted to justify any disregard of
the obligations of Employee hereunder by using any of the
Confidential Information to guide a search by it of
publications and other publicly available information,
selecting a series of items of knowledge from unconnected
sources and fitting them together by use of the integrated
disclosure of the information thereby to justify its disregard
of the obligations of confidence.
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2. Employee shall not disclose to DTI, use in DTI's business, or cause DTI
to use any information or material which is confidential to any third
party unless DTI has a written agreement with the third party allowing
DTI to receive and use the confidential information or materials.
Employee will not incorporate into Employee's work any material which
is subject to the copyrights of any third party unless DTI has the
right to copy and incorporate such copyrighted material.
3. When Employee is no longer employed or engaged by DTI, Employee shall
return to DTI all DTI property, and any and all third party property,
including all Confidential Information, drawings, computer programs or
copies thereof, documentation, notebooks and notes, reports and any
other materials on electronic or printed media.
4. Employee hereby grants, transfers and assigns to DTI all of his or her
rights, title and interest, if any, in any and all Developments,
including rights to translation and reproductions in all forms or
formats and the copyrights and patent rights thereto, if any, and he or
she agrees that DTI may copyright said materials in DTI's name and
secure renewal, reissues and extensions of such copyrights for such
periods of time as the law may permit. "Developments" is defined as any
idea, invention, process, design, concept, or useful article (whether
the design is ornamental or otherwise), computer program,
documentation, literary work, audiovisual work and any other work of
authorship, hereafter expressed, made or conceived solely or jointly by
employee during Employee's employment or engagement, whether or not
subject to patent, copyright or other forms of protection that:
a. Are related to the actual or anticipated business, research
or Development of DTI; and/or
b. Are suggested by or result from any task assigned to
Employee or work performed by Employee for or on
behalf of DTI.
Employee acknowledges that the copyrights in Developments created by
Employee in the scope of Employee's employment or engagement, belong to
DTI by operation of law, or may belong to a party engaged by DTI by
operation of law pursuant to a works for hire contract between DTI and
such contracted part. To the extent the copyrights in such works may
not be owned by DTI or such contracted party by operation of law,
Employee hereby assigns to DTI or such contracted party, as the case
may be , all copyrights (if any) Employee may have in Developments.
Items not assigned by this Section 4 are listed and described on the
attached "Schedule of Separate Works".
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Employee agrees not to include any part of such items in the materials
Employee prepares for DTI unless and until such items are licensed or
assigned to DTI under separate written agreement.
At all times hereafter, Employee agrees to assist DTI in obtaining
patents or copyrights on any Developments assigned to DTI that DTI, in
its sole discretion, seeks to patent or copyright. Employee also agrees
to sign all documents, and do all things necessary to obtain such
patents or copyrights, to further assign them to DTI, and to reasonably
protect them and DTI against infringement by other parties at DTI
expense with DTI prior approval.
Employee irrevocably appoints any DTI-selected designee to act, at all
time hereafter, as his or her agent and attorney-in-fact to perform all
acts necessary to obtain patents and/or copyrights as required by this
Agreement if Employee (i) refuses to perform those acts or (ii) is
unavailable, within the meaning of the United States Patent and
Copyright laws. It is expressly intended by Employee that the foregoing
power of attorney is coupled with an interest.
Employee shall keep complete, accurate, and authentic information and
records on all Developments in the manner and form reasonably requested
by DTI. Such information and records, and all copies thereof, shall be
the property of DTI as to any Developments assigned DTI. Employee
agrees to promptly surrender such information and records at the
request of DTI as to any Developments.
5. In connection with any of the Developments assigned by Section 4,
Employee agrees:
a. To disclose them promptly to DTI, and
b. At DTI's request, to execute separate written assignments to
DTI and do all things reasonable necessary to enable DTI to
secure patents, register copyrights or obtain any other form
of protection for Developments in the United States and in
other countries. If Employee fails or is unable to do so,
Employee hereby authorizes DTI to act under power of attorney
for Employee to do all things to secure such rights.
c. To provide DTI with notice of any inadvertent disclosure of
Confidential Information related to any Development.
6. Without limitation of any other Agreement between Employee and DTI,
Employee shall not employ or engage or attempt to employ or engage the
services of any employee of DTI, either
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directly or through the agency of a third party during the term of, or
within six (6) months after, the termination of Employee's employment
or engagement with DTI.
7. DTI, its subsidiaries, licensees, successors or assigns, (direct or
indirect) are not required to designate Employee as author of any
Development when such Development is distributed publicly or otherwise.
Employee waives and releases, to the extent permitted by law, all
Employee's rights to such designation and any rights concerning future
modifications of such Developments.
8. Rights, assignments, and representations made or granted by Employee in
this Agreement, are assignable by DTI and are for the benefit of DTI's
successors, assigns, and parties contracted with DTI.
9. Miscellaneous Provisions.
a) Amendments. The provisions of this Agreement may not be
amended, supplemented, waived or changed orally, but only by a
writing signed by the party as to whom enforcement of any such
amendment, supplement, waiver or modification is sought and
making specific reference to this Agreement.
b) Further Assurances. The parties hereby agree from time to time
to execute and deliver such further and other transfers,
assignments and documents and do all matters and things which
may be convenient or necessary to more effectively and
completely carry out the intentions of this Agreement.
c) Brokers. Each of the parties represents and warrants that such
party has dealt with no broker or finder in connection with
any of the transactions contemplated by this Agreement, and,
insofar as such party knows, no broker or other person is
entitled to any commission or finder's fee in connection with
any of these transactions. The parties each agree to indemnify
and hold harmless one another against any loss, liability,
damage, cost, claim or expense incurred by reason of any
brokerage commission or finder's fee alleged to be payable
because of any act, omission or statement of the indemnifying
party.
d) Binding Effect. All of the terms and provisions of this
Agreement, whether so expressed or not, shall be binding upon,
inure to the benefit of, and be enforceable by the parties and
their respective administrators, executors, legal
representatives, heirs, successors and permitted assigns.
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e) Headings. The headings contained in this Agreement are for
convenience of reference only, are not to be considered a part
hereof and shall not limit or otherwise affect in any way the
meaning or interpretation of this Agreement.
f) Severability. If any provision of this Agreement or any other
Agreement entered into pursuant hereto is contrary to,
prohibited by or deemed invalid under applicable law or
regulation, such provision shall be inapplicable and deemed
omitted to the extent so contrary, prohibited or invalid, but
the remainder hereof shall not be invalidated thereby and
shall be given full force and effect so far as possible. If
any provision of this Agreement may be construed in two or
more ways, one of which would render the provision invalid or
otherwise voidable or unenforceable and another of which would
render the provision valid and enforceable, such provision
shall have the meaning which renders it valid and enforceable.
g) Survival. All covenants, agreements, representations and
warranties made herein or otherwise made in writing by any
party pursuant hereto shall survive the execution and delivery
of this Agreement and the termination of employment or
engagement of Employee.
h) Waivers. The failure or delay of any party at any time to
require performance by another party of any provision of this
Agreement, even if known, shall not affect the right of such
party to require performance of that provision or to exercise
any right, power or remedy hereunder. Any waiver by any party
of any breach of any provision of this Agreement should not be
construed as a waiver of any continuing or succeeding breach
of such provision, a waiver of the provision itself, or a
waiver of any right, power or remedy under this Agreement. No
notice to or demand on any party in any case shall, of itself,
entitle such party to any other or further notice or demand in
similar or other circumstances.
i) Specific Performance. Each of the parties acknowledges that
the parties will be irreparably damage (and damages at law
would be an inadequate remedy) if this Agreement is not
specifically enforced. Therefore, in the event of a breach or
threatened breach by any party of any provision of this
Agreement, then the other parties shall be entitled, in
addition to all other rights or remedies, to injunctions
restraining such breach, without being required to show any
actual damage or to post any bond or other security, and/or to
a decree for specific performance of the provisions of this
Agreement.
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j) Jurisdiction and Venue. The parties acknowledge that a
substantial portion of negotiations and anticipated
performance and execution of this Agreement occurred or shall
occur in Palm Beach County, Florida, and that, therefore,
without limiting the jurisdiction or venue of any other
federal or state courts, each of the parties irrevocably and
unconditionally (a) agrees that any suit, action or legal
proceeding arising out of or relating to this Agreement may be
brought in the courts of record of the State of Florida in
Palm Beach County or the court of the United States, Southern
District of Florida; (b) consents to the jurisdiction of each
such court in any suit, action or proceeding; (c) waives any
objection which it may have to the laying of venue of any such
suit, action or proceeding in any of such courts; and (d)
agrees that service of any court paper may be effected on such
party by mail, as provided in this Agreement, or in such other
manner as may be provided under applicable laws or court rules
in said state.
k) Remedies Cumulative. Except as otherwise expressly provided
herein, no remedy herein conferred upon any party is intended
to be exclusive of any other remedy, and each and every such
remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at
law or in equity or by statute or otherwise. No single or
partial exercise by any party of any right, power or remedy
hereunder shall preclude any other or further exercise
thereof.
l) Governing Law. This Agreement and all transactions
contemplated by this Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws
of the State of Florida without regard to principles of
conflicts of laws.
m) Preparation of Agreement. This Agreement shall not be
construed more strongly against any party regardless of who is
responsible for its preparation. The parties acknowledge each
contributed and is equally responsible for its preparation.
n) Entire Agreement. This Agreement represents the entire
understanding and agreement among the parties with respect to
the subject matter hereof, and supersedes all other
negotiations, understandings and representations (if any) made
by and among such parties.
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IN WITNESS WHEREOF, the parties have duly set their hands to this Agreement,
effective as of the date stated above.
XXXXXX TECHNOLOGIES, INC. EMPLOYEE
/s/ Xxxxx X. Xxxxx
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DTI Authorized Signature Employee's Signature
/s/ Xxxxx X. Xxxxx
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Date Employee's Printed Name
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Date
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SCHEDULE OF SEPARATE WORKS
The following are works that are not assigned by Section 4 of the Invention
Assignment and Confidentiality Agreement, in which Employee has any right, title
or interest, and which were conceived or written either wholly or in part by
Employee, prior to or outside the scope of Employee's employment by DTI.
DESCRIPTION: (If none, enter the word "None")
NONE
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Indicate any item listed above that has been published, registered as a
copyright, or is or has been the subject of a patent application:
NONE
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Indicate the name of such organization or third party who also has rights in any
of the listed items (such as former employers, partners, etc.):
NONE
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The foregoing is complete and accurate to the best of Employee's knowledge.
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Employee's Signature Date
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Employee's Printed Name
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EXHIBIT B TO EMPLOYMENT AGREEMENT
NON-SOLICITATION AND NON-COMPETE AGREEMENT
THIS NON-SOLICITATION AND NON-COMPETE AGREEMENT ("Agreement") made as of this
31st day of January, 1997 by and between Xxxxxx Technologies, Inc., a Florida
corporation with its principal office at 000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxx
Xxxxx, Xxxxxxx 00000 (hereinafter called "Xxxxxx") and Xxxxx X. Xxxxx
(hereinafter "Employee").
WHEREAS, Employee is accepting employment with Xxxxxx; and
WHEREAS, the parties wish to reflect their agreement as to Employee's
promises regarding Employee's solicitation and competition which have induced
Xxxxxx to employ Employee at Employee's status with Xxxxxx, as well as Daleen's
extension of certain severance benefits to Employee.
NOW, THEREFORE, Employee and Xxxxxx (hereinafter sometimes referred to
collectively as the "parties" and separately as a "party") in consideration of
Employee's employment with Xxxxxx and the covenants hereinafter set forth and
other good and valuable consideration and intending to be legally bound hereby,
agree as follows:
1. Non-solicitation. Employee will not, at any time while
employed by Xxxxxx and for one (1) year after the termination of Employee's
employment with Xxxxxx for any reason whatsoever, directly or indirectly (by
assisting or suggesting to another, or otherwise) solicit otherwise attempt to
induce or accept the initiative of another in such regard, alone or by combining
or conspiring with anyone, any employees, officers, directors, agents,
consultants, representatives, contractors, suppliers, distributors, customers or
other business contacts (collectively, "Business Affiliates") of Xxxxxx to
terminate or modify its position as an employee, officer, director, agent,
consultant, representative, contractor, supplier, distributor, customer or
business contact with Xxxxxx or to compete against Xxxxxx.
2. Non-competition. (a) Employee shall not while employed by
Xxxxxx, and after the termination of said employment for any reason whatsoever
for the time period after such termination described in paragraph (c) below (the
"No-Compete Period"), directly or indirectly, as owner, officer, director,
employee, agent, lender, broker, investor, consultant or representative of any
corporation or as owner of any interest in, or as an employee, agent,
consultant, partner, affiliate or in any other capacity whatsoever or
representative of any other form of business association, sole proprietorship or
partnership, conduct or be related to any business in competition with any
business of Xxxxxx now or in the future, including without limitation, in the
Billing and Customer Care industry (herein referred to as the "Competitive
Business") anywhere within the territories, nor as to certain customers anywhere
in the United States, both listed
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on the "Territories and Customers" Exhibit to the Agreement, made a part hereof,
including without limitation, the solicitation of any customers, who were at any
time customers of Xxxxxx and in connection with a business which is competitive
with the Competitive Business except that such competitive activity will be
permitted as to business solicitation of and competition with Xxxxxx as to any
entity listed on an Exhibit to this Agreement made a part hereof identified as a
"No-Compete Exception", if any, subject to paragraph (c) below.
(b) In addition to, and not in limitation of the other provisions
hereof or of any other Agreement between Employee and Xxxxxx, Employee shall not
at any time in any manner other than in the ordinary course of good faith
competition only as permitted herein interfere with, disturb, disrupt, decrease
or otherwise jeopardize the business of Xxxxxx or do or permit to be done
anything which may tend to take away or diminish the trade, business or good
will of Xxxxxx or give to any person the benefit or advantage of Company's or
Seller's methods of operation, advertising, publicity, training, business
customers or accounts, or any other information relating or useful to Daleen's
business.
(c) The No-Compete Period shall increase depending upon the
duration of Employee's employment with Xxxxxx as follows:
i) If Employee has completed one hundred eighty (180) days or
less of employment there will be a six (6) month No-Compete
Period;
ii) If Employee has completed more than one hundred eighty (180)
days of employment the the No-Compete Period will be one (1)
year;
DTI reserves the right to waive the Non-Compete Period at its option in
return for the payment of the severance benefit described in Section 4.
3. Legal Effect. The foregoing covenants of Employee shall be
deemed severable, and the invalidity of any covenant shall not affect the
validity or enforceability of any other covenant. The existence of any claim or
cause of action by Employee against Xxxxxx predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by Xxxxxx of these
covenants. Daleen's failure to object to any conduct in violation of this
Agreement shall not be deemed a waiver by Xxxxxx, but Xxxxxx may, if it wishes,
specifically waive any part or all of those covenants to the extent that such
waiver is set forth in writing duly authorized by Daleen's Board of Directors.
Employee acknowledges and confirms that the length of the term and
geographical restrictions contained herein are fair and reasonable and not the
result of overreaching, duress or coercion of any kind. Employee further
acknowledges and confirms that his or her full, uninhibited and faithful
observance of each of the
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covenants contained in this Agreement will not cause him or her any undue
hardship, financial or otherwise, and that enforcement of each of the covenants
contained in this Agreement will not impair his or her ability to obtain
employment commensurate with his or her abilities and on terms fully acceptable
to him or her or otherwise to obtain income required for the comfortable support
of him or her and his or her family and the satisfaction of the needs of his or
her creditors. Employee acknowledges and confirms that his or her special
knowledge of the business of Xxxxxx is such as would cause Xxxxxx serious injury
and loss if he or she were to use such ability and knowledge to the benefit of a
competitor or were to compete with Xxxxxx.
In the event that any court shall finally hold that the time or
territory or any other provision stated in this Agreement constitutes an
unreasonable restriction upon Employee, Employee hereby expressly agrees that
the provisions of this Agreement shall not be rendered void, but shall apply as
to time and territory or to such other extent as such court may judicially
determine or indicate constitutes a reasonable restriction under the
circumstances involved. Employee hereby agrees that in the event of the
violation by him or her of any of the provisions of this Agreement, Xxxxxx will
be entitled if it so elects, to institute and prosecute proceedings at law or in
equity to obtain damages with respect to such violation or to enforce the
specific performance of this Agreement by Employee or to enjoin Employee from
engaging in any activity in violation hereof without any requirement on the part
of Xxxxxx to post any bond.
In the event Xxxxxx should bring any legal action or other proceeding
for the enforcement of this Agreement, the time for calculating the No-Compete
Period or terms of any other restriction herein shall not include the period of
time commencing with the filing of legal action or other proceeding to enforce
the terms of this Agreement through the date of final judgment or final
resolution, including all appeals, if any, of such legal action or other
proceeding.
4. Severance. In further consideration of the entering into of
this Agreement by Employee, Xxxxxx agrees to entitle Employee to a severance pay
benefit based upon base salary dependent upon the duration of Employee's
employment with Xxxxxx, determined as follows:
a) One hundred eighty (180) days or less of employment will
result in a severance benefit equal to six (6) months salary;
b) Beyond one hundred eighty (180) days of employment will result
in a severance benefit equal to one (1) year salary.
c) If DTI waives the Non-Compete Period there shall be no
severance benefit paid for that period, subject to a minimum
severance of six (6) months salary.
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The foregoing severance benefit shall be paid by Xxxxxx in accordance
with DTI's current payroll policies. Employee shall not be entitled to any
severance benefit if terminated by Xxxxxx for "cause" or if Employee voluntarily
resigns from his or her employment with Xxxxxx subject to the provisions of the
Non-Compete period in Section 2(c). As used in this Agreement determination for
"cause" shall be defined as termination of Employee by Xxxxxx in the event
Employee has been convicted of any felony or, in the case of other crimes,
involving moral turpitude or dishonesty, or for any breach by Employee of any
agreement with Xxxxxx or of its employment or business policies (including
without limitation theft or misuse of company property), or for any other act or
omission by Employee which does not fit into the previous categories but which
Xxxxxx in good faith believes has occurred to its detriment and about which
Employee has received at least one (1) written warning by Xxxxxx and despite
such prior written warning, Employee has a second occasion committed such act or
omission.
5. Miscellaneous Provisions.
The provisions of this Agreement may not be amended, supplemented,
waived or changed orally, but only by a writing signed by the party as to whom
enforcement of any such amendment, supplement, waiver or modification is sought
and making specific reference to this Agreement. All of the terms and provisions
of this Agreement, whether so expressed or not, shall be binding upon, inure to
the benefit of, and be enforceable by the parties and their respective
administrators, executors, legal representatives, heirs, successors and
permitted assigns. The headings contained in this Agreement are for convenience
of reference only, are not to be considered a part hereof and shall not limit or
otherwise affect in any way the meaning or interpretation of this Agreement. The
failure or delay of any party at any time to require performance by another
party of any provision of this Agreement, even if known, shall not affect the
right of such party to require performance of that provision or to exercise any
right, power or remedy hereunder. Any waiver by any party of any breach of any
provision of this Agreement should not be construed as a waiver of any
continuing or succeeding breach of such provision, a waiver of the provision
itself, or a waiver of any right, power or remedy under this Agreement, No
notice to or demand on any party in any case shall, of itself, entitle such
party to any other or further notice or demand in similar or other
circumstances.
The parties acknowledge that a substantial portion of negotiations,
anticipated performance and execution of this Agreement occurred or shall occur
in Palm Beach County, Florida, and that, therefore, without limiting the
jurisdiction or venue of any other federal or state courts, each of the parties
irrevocably and unconditionally (a) agrees that any suit, action or legal
proceeding arising out of or relating to this Agreement may be brought in the
courts of record of the State of Florida in
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Palm Beach County or the District Court of the United States, Southern District
of Florida; (b) consents to the jurisdiction of each such court in any suit,
action or proceeding; (c) waives any objection which it may have to the laying
of venue of any such suit, action or proceeding in any of such courts; and (d)
agrees that service of any court paper may be effected on such party by mail, as
provided in this Agreement, or in such other manner as may be provided under
applicable laws or court rules in said state. Except as otherwise expressly
provided herein, no remedy herein conferred upon any party is intended to be
exclusive of any other remedy, and each and every such remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute or otherwise. No single
or partial exercise by any party of any right, power or remedy hereunder shall
preclude any other or further exercise thereof. This Agreement and all
transactions contemplated by this Agreement shall be governed by, and construed
and enforced in accordance with, the internal laws of the State of Florida
without regard to principles of conflicts of laws. This Agreement shall not be
construed more strongly against any party regardless of who is responsible for
its preparation. The parties acknowledge each contributed and is equally
responsible for its preparation. Any time period provided for herein which shall
end on a Saturday, Sunday or legal holiday shall extend to 5:00 p.m. of the next
full business day. This Agreement represents the entire understanding and
agreement amount the parties with respect to the subject matter hereof, and
supersedes all other negotiations, understandings and representations (if any)
made by and among such parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date written above.
Xxxxxx Technologies, Inc.
----------------------------- -------------------------------
Employee's Signature Its: CEO
----------------------------- -------------------------------
Printed Name Printed Name
NO-COMPETE EXCEPTIONS
Exhibit to Non-Solicitation and Non-Compete Agreement of Xxxxx X. Xxxxx.
NONE.
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TERRITORIES AND CUSTOMERS
Exhibit to Non-Solicitation and Non-Compete Agreement of Xxxxx X. Xxxxx.
THE WORLD.
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