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EXHIBIT 10.14
XXXXXXXX.XXX SOFTWARE, INC.
FORM OF EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is effective as of date set
forth below ("Effective Date"), by and between XXXXXXXX.XXX SOFTWARE, INC., a
Georgia corporation ("Company"), and __________________________________________
("Employee")(collectively, the "Parties").
WHEREAS, the Company has agreed to continue to employ Employee in
exchange for Employee's compliance with the terms of this Agreement;
WHEREAS, the Company and Employee desire to express the terms and
conditions of Employee's continued employment with the Company in this
Agreement; and
WHEREAS, the Company and Employee desire to modify that certain
Employment Agreement between Employee and the Company dated _________ (the
"Prior Agreement"), which modification shall be contemporaneous with the
Effective Date of this Agreement].
For and in consideration of Employee's employment and continued
employment and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS. Defined terms used herein are defined in the recitals and
at the bottom of this Agreement.
2. DUTIES. Employee agrees that he or she will devote his or her full
working time to the services of Company in such capacities as Company shall
direct, and he or she will perform his or her duties faithfully, diligently and
to the best of his or her ability.
3. OWNERSHIP. (a) All Work Product will be considered work made for hire
by Employee and owned by Company. To the extent that any Work Product may not by
operation of law be considered work made for hire or if ownership of all rights
therein will not vest exclusively in Company, Employee assigns to Company, now
or upon its creation without further consideration, the ownership of all such
Work Product. Company has the right to obtain and hold in its own name
copyrights, patents, registrations, and any other protection available in the
Work Product. Employee agrees to perform any acts as may be reasonably requested
by Company to transfer, perfect, and defend Company's ownership of the Work
Product.
(b) To the extent any materials other than Work Product are
contained in the materials Employee delivers to Company or its Customers,
Employee grants to Company an irrevocable, nonexclusive, worldwide, royalty-free
license to use and distribute (internally or externally) or authorize others to
use and distribute copies of, and prepare derivative works based upon, such
materials and derivative works thereof. Employee agrees that during his or her
employment, any money or other remuneration received by Employee for products or
services rendered to a Customer belong to Company if that product or service is
also offered by the Company.
4. TRADE SECRETS AND CONFIDENTIAL INFORMATION. (a) Company may disclose to
Employee certain Proprietary Information. Employee agrees that the Proprietary
Information is the exclusive property of Company (or a third party providing
such information to Company) and Company (or such third party) owns all
worldwide copyrights, trade secret rights, confidential information rights, and
all other property rights therein.
(b) Company's disclosure of the Proprietary Information to
Employee does not confer upon Employee any license, interest or rights in or to
the Proprietary Information. Except in the performance of services for Company,
Employee will hold in confidence and will not, without Company's prior written
consent, use, reproduce, distribute, transmit, reverse engineer, decompile,
disassemble, or transfer, directly or indirectly, in any form, or for any
purpose, any Proprietary Information communicated or made available by Company
to or received by Employee. Employee agrees to notify Company immediately if he
or she discovers any unauthorized use or disclosure of the Proprietary
Information.
(c) Employee's obligations under this Agreement with regard to (i)
Trade Secrets shall remain in effect for as long as such information remains a
trade secret under applicable law, and (ii) Confidential Information shall
remain in effect during Employee's employment with Company and for three years
thereafter. These obligations will not apply to the extent that Employee
establishes that the information communicated (1) was already known to Employee,
without an obligation to keep it confidential at the time of its receipt from
Company; (2) was received by Employee in good faith from a third party lawfully
in possession thereof and having no obligation to keep such information
confidential; or (3) was publicly known at the time of its receipt by Employee
or has become publicly known other than by a breach of this Agreement or other
action by Employee.
5. CUSTOMER NON-SOLICITATION. Employee's position is a position of trust
and responsibility with access to information concerning Customers of the
Company. The relationship between the Company and each of its Customers are
valuable assets of the Company and may not be converted to Employee's own use.
During Employee's employment and the One Year Limitation Period, Employee will
not solicit any Customer of the Company for the purpose of providing any goods
or services competitive with the Company Business. The restrictions set forth in
this Section 5 apply only to the Customers with whom Employee had Contact.
6. EMPLOYEE NON-SOLICITATION. Employee's position is a position of trust
and responsibility with access to information concerning employees of the
Company. The
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relationship between the Company and each of its employees are valuable assets
of the Company and may not be converted to Employee's own use. During Employee's
employment and the One Year Limitation Period, Employee will not, without the
Company's express prior written consent, directly or indirectly, solicit,
recruit or induce any Company Employee to (a) terminate his or her employment
relationship with the Company or (b) work for any other person or entity engaged
in the Company Business.
7. NON-COMPETITION. During the One Year Limitation Period, Employee agrees
that, without the prior written consent of Company, Employee shall not perform
any of the duties he or she performed on behalf of the Company during the One
Year Restrictive Period for any person or entity competing with the Company in
the Company Business in the Restricted Territory. The Parties agree and
acknowledge that: (i) the length of the One Year Limitation Period and the size
of the Restricted Territory are fair and reasonable in that they are reasonably
required for the protection of Company and that the Restricted Territory is the
area in which Employee shall perform (or currently performs) services for
Company; and (ii) by having access to information concerning employees and
actual or prospective customers of Company, Employee shall obtain a competitive
advantage as to such parties.
8. WARRANTIES OF EMPLOYEE. Employee warrants that he or she is not
presently under any agreement that will prevent him or her from the performance
of duties for Company, and is not in breach of any agreement with respect to any
trade secrets or confidential information owned by any other party.
9. INJUNCTIONS. Employee agrees that certain breaches by Employee of this
Agreement will result in irreparable harm to Company and that the remedies at
law for such breaches may not adequately compensate Company for its damages.
Employee agrees that in the event of any such breaches, Company shall be
entitled to an injunction in addition to any other remedies at law.
10. SEVERABILITY. Any holding that a provision of this Agreement is invalid
or unenforceable by a court of competent jurisdiction shall not affect the
enforceability of any other provisions. If for any reason the restrictions in
Sections 4 through 7 are held to be invalid or unenforceable, then such
restrictions shall be interpreted or modified to include as much of the duration
and scope as will render such restrictions valid and enforceable.
11. TERM. This Agreement is effective when signed by both Parties and will
remain in effect for an indefinite period of time. The Parties agree that
Employee's employment may be terminated at any time, for any reason or for no
reason, for cause or not for cause, with or without notice, by Company or
Employee. Upon any such termination, Employee shall return immediately to
Company all documents and other property of Company, together with all copies
thereof, including all Work Product and Proprietary Information, within
Employee's possession or control.
12. SEPARATION PAY. If Employee's employment is terminated (i) by the
Company Without Cause, or (ii) by Employee for Good Reason, then, beginning
immediately after the date of termination (the "Termination Date"), the Company
shall pay Employee monthly Separation Pay as follows: (i) in the event the
Termination Date is on or after January 1, 2002, Employee's monthly Separation
Pay shall be equal to the annual salary being paid to Employee prior to the
Termination Date plus total bonuses earned by Employee under the executive bonus
plan applicable to Employee during the most recent twelve (12) month period
prior to the Termination Date, divided by twelve (12); or (ii) in the event the
Termination Date is before January 1, 2002, Employee's Separation Pay shall be
equal to the annual salary last paid to Employee prior to the Termination Date
divided by twelve (12), plus total bonuses earned by Employee under the
executive bonus plan applicable to Employee during fiscal year 2001 divided by
the total number of months (including portions of months) that Employee was
employed by the Company in 2001. In either case, such monthly Separation Pay
shall be offset by any outstanding advances on salary or bonuses paid to
Employee prior to the Termination Date. The Company shall pay Employee
Separation Pay for a minimum of three months. In addition, the Company shall pay
Employee Separation Pay for one and one-half months for every year between
Employee's date of employment with the Company and the Termination Date, with
partial years pro rated. The Company's obligation to pay Employee Separation Pay
shall be conditioned upon Employee's (i) execution of a Separation and Release
Agreement in a form prepared by the Company whereby Employee releases the
Company from any and all liability and claims of any kind, and (ii) compliance
with the restrictive covenants (Sections 4, 5, 6, and 7) and all
post-termination obligations contained in this Agreement. The Company's
obligation to pay Employee Separation Pay set forth in this Section 12 shall
terminate immediately upon any breach by Employee of any post-termination
obligations to which Employee is subject.
13. MISCELLANEOUS. This Agreement may not be modified except by a writing
signed by both Parties, except that it may be supplemented by rules and
regulations described in Company employee handbook and other documents provided
to Employee from time to time, and Employee agrees to follow such rules and
regulations. If this Agreement conflicts with such rules and regulations, this
Agreement will control. Due to the personal nature of this Agreement, Employee
may not assign his or her rights or obligations under this Agreement without the
prior written consent of Company. This Agreement will be governed by the laws of
the State of Georgia without regard to its rules governing conflicts of law.
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This Agreement represents the entire understanding of the parties concerning its
subject matter and supersedes and terminates all prior communications,
agreements and understandings relating to the same[, including, but not limited
to, the Prior Agreement. The Parties agree that this Agreement modifies the
Prior Agreement by mutual written consent]. The Parties acknowledge and agree
that [the modification of the Prior Agreement] by virtue of the Parties entering
into this Agreement did not and will not result in the vesting, acceleration, or
triggering of any employment benefit in Employee's favor, including, but not
limited to, any vesting of stock options, or any other right which Employee may
have as a shareholder, officer, director, employee, or under any agreement or
understanding between the Parties, including, but not limited to, [the Prior
Agreement or] the Option Grants. [Employee releases and discharges the Company
from any claim or liability, whether known or unknown, arising out of or
relating to the Prior Agreement.] All communications concerning or required by
this Agreement shall be in writing and shall be deemed given when delivered to
the address listed below (as may be amended by notice), by hand, courier or
express mail, or by registered or certified United States mail, return receipt
requested, postage prepaid.
The Parties have executed this Agreement effective as of the _____ day of
________________, 2001 ("Effective Date").
XXXXXXXX.XXX SOFTWARE, INC. [EMPLOYEE NAME]
By:
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Date: Date:
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[DEFINITIONS APPEAR ON FOLLOWING PAGE.]
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DEFINITIONS
"Change of Control" means (a) any transaction or series of transactions pursuant
to which the Company sells, transfers, leases, exchanges, or disposes of
substantially all (i.e., at least eighty-five percent (85%)) of its assets for
cash or property, or for a combination of cash or property, or for other
consideration; or (b) any transaction pursuant to which persons who are not
current shareholders of the Company acquire by merger, consolidation,
reorganization, division or other business combination or transaction, or by
purchase of an interest in the Company, an interest in the Company so that after
such transaction, the shareholders of the Company immediately prior to such
transaction no longer have a controlling (i.e., 50% or more) voting interest in
the Company.
"Company" means Xxxxxxxx.xxx Software, Inc., its parents, subsidiaries,
affiliates, and all related companies, as well as their respective officers,
directors, shareholders, employees, agents, and any other representatives.
"Company Business" means the business of developing, marketing, and selling
Internet access management and reporting software and solutions and Call
Accounting software and solutions.
"Company Employee" means any person who (i) is employed by the Company at the
time Employee's employment with the Company ends, (ii) was employed by the
Company during the last year of Employee's employment with the Company (or
during Employee's employment if employed less than a year), or (iii) is employed
by the Company at any time during the One Year Limitation Period.
"Confidential Information" means information of the Company, to the extent not
considered a Trade Secret under applicable law, that (i) relates to the business
of the Company, (ii) possesses an element of value to the Company, (iii) is not
generally known to the Company's competitors, and (iv) would damage the Company
if disclosed. Confidential Information includes, but is not limited to, (i)
future business plans, (ii) the composition, description, schematic or design of
products, future products or equipment of the Company, (iii) communication
systems, audio systems, system designs and related documentation, (iv)
advertising or marketing plans, (v) information regarding independent
contractors, employees, clients and customers of the Company, and (vi)
information concerning the Company's financial structure and methods and
procedures of operation.
"Contact" means any interaction between Employee and a Customer which (i) takes
place in an effort to establish, maintain, and/or further a business
relationship on behalf of the Company and (ii) occurs during the last three
years of Employee's employment with the Company (or during Employee's employment
if employed less than three years).
"Customer" means any person or entity to whom the Company has sold its products
or services, or solicited to sell its products or services.
"For Cause" shall mean a termination of Employee's employment with the Company
for any of the following reasons: (i) Employee's material breach of this
Agreement, (ii) any act or omission by Employee which is done with the purpose
of being injurious to the Company or the business reputation of the Company,
(iii) Employee's dishonesty, fraud, malfeasance, gross negligence or misconduct,
(iv) Employee's failure to satisfactorily perform his or her duties under this
Agreement, to follow the direction (consistent with his or her duties) of the
President or the Board or any individual to whom Employee reports, or to follow
the policies, procedures, and rules of the Company, or (v) Employee's arrest,
indictment for, conviction of, or Employee's entry of a plea of guilty or no
contest to, a felony or crime involving moral turpitude.
"Good Reason" means (a) the assignment of Employee, without Employee's consent,
to a principal place of work which increases Employee's commuting distance from
Employee's residence to Employee's principal place of work by fifty (50) miles
or more, (b) a substantial adverse alteration of the Employee's position,
reporting relationship or duties without Employee's consent, (c) a reduction in
Employee's base salary and bonus without Employee's consent or (d) the material
breach by Company of this Agreement which is not cured within thirty (30) days
of receipt of written notice specifying the breach.
"One Year Limitation Period" means the twelve month period beginning immediately
upon the termination of Employee's employment with Company for any reason.
"Proprietary Information" means all Trade Secrets and Confidential Information
of Company.
"Restricted Territory" shall mean the United States.
"Trade Secrets" means information of Company constituting a trade secret within
the meaning of Section 10-1-761(4) of the Georgia Trade Secrets Act of 1990,
including all amendments hereafter adopted.
"Without Cause" shall mean a termination of Employee's employment by the Company
for any reason other than (i) Employee's death, (ii) Employee's disability which
renders Employee unable to perform the essential functions of his or her job
with or without reasonable accommodation, (iii) mutual written agreement between
Employee and the Company at any time, or (iv) For Cause.
"Work Product" shall mean the data, materials, documentation, computer programs,
inventions (whether or not patentable), and all works of authorship, including
all worldwide rights therein under patent, copyright, trade secret, confidential
information, or other property right, created or developed in whole or in part
by Employee while performing services in furtherance of or related to the
Company Business.
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