EXHIBIT 10.1
EMPLOYMENT AGREEMENT
--------------------
This EMPLOYMENT AGREEMENT ("this Agreement") is made and effective this
1st day of June 2000, by and between XXXXXX TECHNOLOGIES, INC., a Florida
corporation located at 0000 Xxxxx Xxxxx Xxxx, Xxxx Xxxxx, XX 00000 ("DTI" or
"Employer"), and Xxxxxx Xxxxxxxx at 000 Xxxxxxxx Xxxx Xxxx, Xxxxxx, XX. 00000
("Employee").
WITNESSETH:
WHEREAS, DTI believes it is in DTI's best interest to employ Employee,
and Employee desires to be employed by DTI;
WHEREAS, DTI and Employee desire to set forth the terms and conditions
on which Employee shall be employed by and provide his services to DTI.
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. DTI hereby employs Employee in its business, 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. If an Employee decides to terminate this or her employment,
DTI recommends a minimum two (2) week notice. Whenever possible, Xxxxxx will
reciprocate with two (2) weeks notice for termination, but reserves the right to
waive this notice period at its own discretion.
3. CONFIDENTIALITY & NON-DISCLOSURE. Both during and after Employee's
employment they shall not disclose to anyone outside DTI any "Confidential &
Proprietary Information" and shall use such information only for DTI's business
purposes, and shall provide DTI with notice of any inadvertent disclosure of
such information. "Confidential & Proprietary Information" is defined as
information that has not been made publicly available by DTI or the third party
owner of such information. It includes Developments (defined in Section 5),
technical data, specifications, designs, concepts, discoveries, copyrights,
improvements, product plans, research and development, financial information,
customer lists, leads, and/or marketing programs.
Employee shall not disclose to DTI, use 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. Employees will not
incorporate into Employee's work any material that is subject to the copyrights
of any third party unless DTI has the right to copy and incorporate such
copyrighted material.
4. SURRENDER OF RECORDS. Upon the termination of the Employee's
employment, for any reason whatsoever, the Employee agrees to surrender to DTI,
in good condition, all records pertaining to DTI's business operations and
related to any work performed for DTI, and all DTI property, and any and all
third party property, including all Confidential & Proprietary Information,
drawings, computer programs or copies thereof, documentation, notebooks and
notes, reports and any other materials on electronic or printed media. Included
are any documents or media containing the names, addresses, and other
information with regard to customers or potential customers of the DTI.
5. INVENTION ASSIGNMENT. 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 in the scope of
Employee's employment or engagement and solely or jointly during Employee's
employment whether or not subject to patent, copyright or other forms of
protection.
Employee acknowledges that the copyrights in Development created by
Employee 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 party. 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.
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Items not assigned by this Section 5 are listed and described on the
attached "Schedule of Separate Works." Employee agrees not to include any party
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 promptly to disclose to DTI
all Developments, to execute separate written assignments to DTI at DTI's
request, and to assist DTI in obtaining patents or copyrights in the U.S. and in
other countries, 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
reasonable acts to obtain patents and/or copyrights related to Developments as
defined and 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 be 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 to DTI. Employee agrees to promptly
surrender such information and records at the request of DTI as to any
Developments.
6. NON-SOLICITATION. 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 directly or through the
agency of a third party during the term of, or within one (1) year after, the
termination of Employee's employment or engagement with DTI.
7. NON-COMPETITION AGREEMENT. Employee shall not while employed by DTI,
and after the terminations of said employment for the time period described in
the paragraph below as the "Non-Compete Period," directly or indirectly, as
owner, officer, director, employee or agent conduct or be related to any
business in direct competition with any business of DTI now, or any business DTI
may enter into during the Employee's period of employment. An exception will be
made in the case of competitive businesses wherein Employee is not working
directly in a competitive capacity by virtue of their position or in a
competitive operating unit and said competitive products and services are less
than twenty-five (25%) of its total revenue.
In addition to, and not in limitation of the other provisions hereof
or of any other Agreement between Employee and DTI, Employee shall not at any
time in any manor 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 DTI or do or permit to be done anything which may
tend to take away or diminish the trade, business or good will of DTI or give to
any person the benefit or advantage of DTI's methods of operation, advertising,
publicity, training, business customers or accounts, or any other information
relating or useful to DTI's business.
The Non-Compete Period shall be dependent on the duration of
Employee's employment with DTI as follows:
1. If Employee has completed ninety (90) days or less of employment
with DTI there will be no Non-Compete Period;
2. If Employee has completed more than ninety (90) days of employment
with DTI the Non-Compete Period will be six (6) months.
3. DTI may waive the Non-Compete period or any portion of it, at its
sole discretion.
The existence of any claim or cause of action by Employee against
DTI predicated on this Agreement or otherwise, shall not constitute a defense to
the enforcement by DTI of these covenants.
Employee acknowledges and confirms that the restrictions contained
herein are fair and reasonable and not the result of overreaching, duress, or
coercion of any kind.
8. SEVERANCE. In further consideration of the entering into of this
Agreement by Employee, DTI agrees to entitle Employee to a severance pay benefit
based upon base salary dependent upon the duration of Employee's employment with
DTI, determined as follows:
(1) If Employee has completed ninety (90) days or less of employment
with DTI there will be no severance benefit;
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(2) If Employee has completed more than ninety (90) days of
employment with DTI the Employee shall be entitled to three (3) month's
severance base pay.
(3) If DTI waives the Non-Compete Period in its entirety or any
portion of it, there shall be no severance benefit paid for the period that is
waived.
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 7.
9. CONFLICT OF INTEREST. Employee agrees to devote their primary
efforts to the service of DTI and the promotion of DTI's interests. Employee
further agrees never to enter into any relationship, and to immediately sever
any existing relationship, whether such relationship is one for monetary gain,
or not, that compromises Employee's ability to act in the best interests of DTI,
or detracts from Employee's ability to perform Employee's responsibilities and
obligations. In the event that the Employee obtains secondary employment,
Employee agrees to notify the Human Resources Department of DTI prior to
commencing said employment.
10. ENTIRE AGREEMENT & TERMINATION. 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. The Employer may, in
its sole discretion, terminate this Agreement for any reason, subject to any
applicable severance obligation as set forth herein.
11. 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.
12. 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) agree 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.
13. EMPLOYEE REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS. Employee
represents and warrants to DTI that he is fully empowered to enter and perform
his obligations under this Agreement and, without limitation, that he 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 DTI upon
demand for and against any and all judgments, leases, 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.
14. 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.
15. 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.
16. SURVIVAL. Notwithstanding anything to the contrary herein, the
provisions of this Agreement shall survive and remain in effect in accordance
with their respective terms in the event the employment is terminated.
17. WAIVERS. The failure or delay of DTI at any time to require
performance by Employee of any provision of this Agreement, even if known, shall
not affect the right of DTI to require performance of that provision or to
exercise any right, power or remedy hereunder, and any waiver by DTI of any
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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.
18. SPECIFIC PERFORMANCE. Employee acknowledges that the services to be
rendered by Employee hereunder are extraordinary and unique and are vital to the
success of DTI, 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 DTI shall be entitled, in addition to all other rights or
remedies, to injunctions restraining such breach.
19. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXX TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxxx Date: 6/9/00
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Printed Name: Xxxxxxx Xxxxx
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By: /s/ Xxxxxx Xxxxxxxx Date: 6/9/00
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Printed Name: Xxxxxx Xxxxxxxx
-----------------------
FORM003 1/1/98
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SCHEDULE OF SEPARATE WORKS
--------------------------
The following are works that are not assigned by Section 5 of the
Employment 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
Indicate any item listed above that has been published, registered as a
copyright, or is or has been the subject of a patent application:
Indicate the name of such organization or third party that also has rights in
any of the listed items (such as former employers, partners, etc.):
The foregoing is complete and accurate to the best of Employee's knowledge.
Employee's Signature: /s/ XXXXXX XXXXXXXX Date: 6/9/00
---------------------------- ----------
Employee's Printed Name: XXXXXX XXXXXXXX
-------------------------
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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 1 st day of June, 2000, by and between
Xxxxxx Technologies, Inc. (DTI), and (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.
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:
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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". 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 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.
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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.
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
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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.
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) Confidentiality Under legal Requirement Protection. In the
event that Employee is requested or required (by oral
questions, interrogatories, requests for information or
documents in legal proceedings, subpoena, civil investigative
demand or other similar process) to disclose any of the
Confidential Information, Employee shall provide the Company
with prompt written notice of such request or requirement so
that the Company may seek a protective order or other remedy
and/or waive the compliance with the provisions of this
agreement. If, in the absence of a protective order or other
remedy or the receipt of a waiver by the Company, Employee is
nonetheless, in the written opinion of counsel, legally
compelled to disclose Confidential Information to any tribunal
or else stand liable for contempt or suffer other censure or
penalty, Employee may, without liability hereunder, disclose
to such tribunal only that portion of the Confidential
Information which such counsel advises Employee is legally
required to be disclosed, provided the Employee exercises
his/her best efforts to preserve the confidentiality of the
Confidential Information, including, without limitation,
reliable assurance that the confidential treatment will be
accorded the Confidential Information by such tribunal.
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/ Xxxxxxx Xxxxx /s/ Xxxxxx Xxxxxxxx
-------------------------- -------------------------------
DTI Authorized Signature Employee's Signature
6/9/00 Xxxxxx Xxxxxxxx
-------------------------- -------------------------------
Date Employee's Printed Name
6/9/00
-------------------------------
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
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Indicate any item listed above that has been published, registered as a
copyright, or is or has been the subject of a patent application:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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.):
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
The foregoing is complete and accurate to the best of Employee's knowledge.
/s/ Xxxxxx Xxxxxxxx 6/9/00
------------------------------------------ ------------------------------
Employee's Signature Date
Xxxxxx Xxxxxxxx
-----------------------------------------
Employee's Printed Name
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Exhibit B to Employment Agreement
Non-Solicitation and Non-Compete Agreement
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THIS NON-SOLICITATION AND NON-COMPETE AGREEMENT ("Agreement") made as of this
__day of_____, 2000 by and between Xxxxxx Technologies, Inc., a Delaware
corporation with its principal office at 0000 Xxxxx Xxxxx Xxxx, Xxxx Xxxxx,
Xxxxxxx 00000 (hereinafter called "Xxxxxx") and (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 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 No-Compete Period will be one (1) year;
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DTI reserves the right to waive the Non-Compete Period, or any portion
on it, at its option.
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 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 and eighty days (180) or less of employment will
result in a severance benefit equal to six (6) months salary
subject to a six (6) month Non-Compete period;
b) Employment beyond one hundred and eighty days (180) or less of
employment will result in a severance benefit equal to twelve
(12) months salary subject to a twelve (12) month Non-Compete
period;
c) The Company reserves the right to waive the Non-Compete
period. If DTI waives the Non-Compete Period in it's entirety
or any portion of it, there shall be no severance benefit paid
for the period that has been waived.
Xxxxxx shall pay the foregoing severance benefit in accordance with
payroll policies in effect at the time of separation. 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
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(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.
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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 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. 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.
/s/ Xxxxxx Xxxxxxxx /s/ Xxxxxxx Xxxxx 6/9/00
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Employee's Signature Vice President of Human Resources
Xxxxxx Xxxxxxxx Xxxxxxx Xxxxx
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Printed Name Printed Name
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NO-COMPETE EXCEPTIONS
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Exhibit to Non-Solicitation and Non-Compete Agreement of Xxxxxx Xxxxxxxx.
NONE.
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TERRITORIES AND CUSTOMERS
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Exhibit to Non-Solicitation and Non-Compete Agreement of Xxxxxx Xxxxxxxx.
The United States.
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