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EMPLOYMENT AGREEMENT
This AGREEMENT (the "Agreement") is made as of October 24, 2000 (the
"Effective Date"), by and between Nextera Enterprises, Inc., a Delaware
corporation (the "Company"), and Xxxxxxx X. Xxxxxxxxx (the "Executive"). In
consideration of the mutual covenants contained in this Agreement, the Company
and the Executive agree as follows:
1. EMPLOYMENT. Commencing on the Effective Date, the Company agrees to
employ the Executive and the Executive agrees to be employed by the Company on
the terms and conditions set forth in this Agreement.
2. CAPACITY. During the Term (as hereinafter defined), the Executive shall
serve the Company as its Chief Financial Officer. In such capacity, the
Executive shall perform such services and duties in connection with the
business, affairs and operations of the Company consistent with the Executive's
status as Chief Financial Officer as may be assigned or delegated to the
Executive from time to time by or under the direction and supervision of the
Board of Directors or the officers of the Company as designated by the Board of
Directors.
3. TERM. Subject to the provisions of Section 6, the term of employment
under this Agreement (the "Term") shall be for twelve 12 months from the
Effective Date (the "Initial Term") and shall automatically renew for periods of
one (1) year commencing at the expiration of the Initial Term (the "End Date")
and on each subsequent anniversary of the End Date thereafter, unless either the
Executive or the Company, acting through its Board of Directors (the "Board"),
gives written notice to the other not less than thirty (30) days prior to the
End Date or anniversary thereof, as applicable, of such party's election not to
extend the Term.
4. COMPENSATION AND BENEFITS. The regular compensation and benefits payable
to the Executive under this Agreement shall be as follows:
(a) SALARY. During the Term, for all services rendered by the Executive
under this Agreement, the Company shall pay or cause to be paid to the
Executive a base salary (the "Salary") at an annual rate of Two
Hundred Fifty Thousand Dollars ($) ($250,000) commencing on the
Effective Date
(b) BONUS. The Executive will be eligible for a discretionary bonus
targeted to be 50% of Salary upon achievement of goals set by the
Board of Directors.
(c) VACATION. The Executive's vacation entitlement shall be in accordance
with the Company's vacation policy in existence from time to time.
(d) TAXATION OF PAYMENTS AND BENEFITS. The Company shall undertake to make
deductions, withholdings and tax reports with respect to payments and
Benefits under this Agreement to the extent that it reasonably and in
good faith believes that it is required to make such deductions,
withholdings and tax reports. Payments under this Agreement shall be
in amounts net of any such deductions or withholdings. Nothing in this
Agreement shall be construed to require the Company to make any
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payments to compensate the Executive for any adverse tax effect
associated with any payments or benefits or for any deduction or
withholding from any payment or benefit.
(e) EXCLUSIVITY OF SALARY AND BENEFITS. The Executive shall not be entitled
to any payments or benefits other than those provided under this Agreement
(other than customary business expense reimbursements submitted and approved in
accordance with Company policy).
5. EXTENT OF SERVICE. During the Executive's employment under this
Agreement, the Executive shall, subject to the direction and supervision of the
Board, devote substantially all of the Executive's business time, and use the
Executive's best efforts and business judgment, skill and knowledge to the
advancement of the Company's interests and to the discharge of the Executive's
duties and responsibilities under this Agreement. The Executive shall not engage
in any other business activity; provided that nothing in this Agreement shall be
construed as preventing the Executive from:
(a) investing the Executive's assets in any company or other entity in a
manner not prohibited by the Non-Compete, Non-Solicitation, Proprietary
Information, Confidentiality and Inventions Agreement (the "Non-Compete
Agreement") referred to in Section 7(a) and in such form or manner as shall not
require any material activities on the Executive's part in connection with the
operations or affairs of the companies or other entities in which such
investments are made; or
(b) engaging in religious, charitable or other community or non-profit
activities that do not materially impair the Executive's ability to fulfill the
Executive's duties and responsibilities under this Agreement.
6. TERMINATION AND TERMINATION BENEFITS. Notwithstanding the provisions of
Section 3, the Executive's employment under this Agreement shall terminate under
the following circumstances set forth in this Section 6.
(a) TERMINATION BY THE COMPANY FOR CAUSE. The Executive's employment under
this Agreement may be terminated for Cause without further liability on the part
of the Company effective immediately upon a vote of the Board and written notice
to the Executive. Only the following shall constitute "Cause" for such
termination:
(i) material dishonest statements or acts of the Executive with
respect to the Company or any affiliate of the Company;
(ii) commission by the Executive of, or entry by the Executive of a
guilty or no contest plea to, (x) a felony or (y) any misdemeanor involving
moral turpitude, deceit, dishonesty or fraud; or
(iii) A willful violation by Executive of a federal or state law, rule
or regulation applicable to the business of the Company of a type and kind
that is materially adverse to the Company; or
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(iv) willful and material breach of this Agreement or the Non-Compete
Agreement by the Executive, consistent unsatisfactory performance, gross
negligence, habitual neglect of duties, willful misconduct or willful
failure or refusal of the Executive to comply with explicit directions of
the Board, which directions are consistent with Section 2 of this
Agreement, in each instance after fifteen (15) days written notice and an
opportunity to cure.
In making any determination under this Section 6(a), the Board shall act fairly
and in good faith and shall give the Executive an opportunity to appear and be
heard at a meeting of the Board or the compensation committee of the Board,
which meeting may be held telephonically at the request of either the Company or
the Executive, and present evidence on the Executive's behalf.
(b) TERMINATION BY THE EXECUTIVE. The Executive's employment under this
Agreement may be terminated by the Executive by written notice to the Company at
least sixty (60) days prior to such termination.
(c) TERMINATION BY THE COMPANY WITHOUT CAUSE OR BY THE EXECUTIVE WITH GOOD
REASON. Subject to the payment of Termination Benefits pursuant to Section 6(d),
the Executive's employment under this Agreement may be terminated by the Company
without Cause upon written notice to the Executive by a vote of the Board or by
the Executive with Good Reason upon written notice to the Board. For purposes of
this Agreement, "Good Reason" shall mean, without the Executive's written
consent, the occurrence of any of the following circumstances:
(i) the assignment to the Executive of any duties substantially
inconsistent with and inferior to the position of Chief Financial Officer
of the Company or a significant adverse alteration in the nature or status
of the Executive's responsibilities or the conditions of the Executive's
employment as Chief Financial Officer;
(ii) the Company's reduction of the Executive's Salary as in effect on
the Effective Date or as the same may be increased from time to time except
for across-the-board salary reductions similarly affecting all management
personnel of the Company;
(iii) except with respect to an across-the-board benefit plan
reduction or elimination similarly affecting all management personnel of
the Company, the Company's failure to continue in effect any material
compensation or benefit plan in which the Executive participates, unless an
equitable arrangement (embodied in an ongoing substitute or alternative
plan) has been made with respect to such plan, or the Company's failure to
continue the Executive's participation therein (or in such substitute or
alternative plan) on a basis not materially less favorable, both in terms
of the amount of benefits provided and the level of the Executive's
participation relative to other participants; or
(iv) the Company-required relocation of the Executive's residence;
provided; however, Executive acknowledges that he may be required to spend
a
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substantial amount of time traveling on Company business. The Company
shall pay for all of Executive's reasonable travel and living expenses
associated with such travel from the Boston metropolitan area;
(v) the Company's failure to pay to the Executive any portion of the
Executive's current compensation or to pay to the Executive any portion of
an installment or deferred compensation under any deferred compensation
program of the Company within seven (7) days of the date such compensation
is due;
(vi) except with respect to an across-the-board benefit plan reduction
or elimination similarly affecting all management personnel of the Company,
the Company's failure to continue to provide the Executive with benefits
substantially similar to those currently enjoyed by the Executive under any
of the Company's life insurance, medical, health and accident, or
disability plans in which the Executive participates, the taking of any
action by the Company which would directly or indirectly materially reduce
any of such benefits, or the failure by the Company to provide the
Executive with the number of paid vacation days to which the Executive is
entitled on the basis of years of service with the Company in accordance
with the Company's normal vacation policy; or
(vii) in the event the Company engages in a merger or other business
combination or a sale of all or substantially all of its assets, the
failure of any successor to the Company to expressly assume the obligations
of the Company under this Agreement.
(d) CERTAIN TERMINATION BENEFITS. Unless otherwise specifically provided in
this Agreement or otherwise required by law, all compensation and benefits
payable to the Executive under this Agreement shall terminate on the date of
termination of the Executive's employment under this Agreement. Notwithstanding
the foregoing, in the event of termination of the Executive's employment with
the Company pursuant to Section 6(c) or the Company's failure to renew this
Agreement as contemplated by Section 6(g), subject to the Executive's continuing
compliance with his obligations under the Non-Compete Agreement (other than
those under the Section entitled "Non-Compete/Exclusivity"), the Company shall
provide to the Executive the following termination benefits ("Termination
Benefits"):
(i) continuation of the Executive's Salary at the rate then in effect
pursuant to Section 4(a);
(ii) a bonus for the year in which the termination occurs pro rata for
the period of service in such year, based upon fifty percent
(50%) of the bonus amount, if any, paid to the Executive pursuant
to Section 4(b) for the year preceding the year in which the
termination of employment occurs;
(iii) continuation of all Benefits to the extent authorized by and
consistent with 29 U.S.C.ss.1161 et seq. (commonly known as
"COBRA"), with the cost of the regular premium for such Benefits
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shared in the same relative proportion by the Company and the
Executive as in effect on the date of termination;
(iv) the Termination Benefits set forth in (i), (ii), and (iii) above
shall continue effective until the later of (x) the expiration of
the Initial Term or (y) one (1) year from the date of the
termination of the Executive's employment, and will include such
payments for accrued vacation pay and any similar items required
by law. Notwithstanding the foregoing, nothing in this Section
6(d) shall be construed to affect the Executive's right to
receive COBRA continuation entirely at the Executive's own cost
to the extent that the Executive may continue to be entitled to
COBRA continuation after the Executive's right to cost sharing
under Section 6(d)(iii) ceases;
(v) Any options exercisable for Class A Common Stock granted to the
Executive which are not vested at that time shall be deemed to have vested
to the extent of fifty percent (50%) of such remaining unvested portion;
(vi) Executive will be released from the restrictions and covenants
contained within the section entitled "Non-Compete/Exclusivity" under the
Non-Compete Agreement executed by Executive, and upon termination of the
payment of the Termination Benefits set forth in (i), (ii), and (iii)
above, Executive will be released from the restrictions and covenants
contained within the section entitled "Non-Solicitation" under the
Non-Compete Agreement executed by Executive; provided, however, that at
Executive's option upon prior written notice to the Company, Executive
shall be released from the restrictions and covenants contained within the
section entitled "Non-Solicitation" under the Non-Compete Agreement
executed by Executive, and the Company shall have no further liability or
obligation for the payment of any remaining Termination Benefits under
Sections 6(d)(i), 6(d)(ii) and 6(d)(iii) from and after the date of such
notice, which Termination Benefits shall be forfeited by Executive; and
(vii) In addition to the foregoing, in the event of the termination of
the Executive's employment with the Company for any reason, the Executive
shall be entitled to payment of any accrued and unpaid Benefits for which
the Executive may otherwise be vested or entitled in accordance with the
terms of the applicable plans governing such Benefits and to payment for
reimbursable expenses under applicable Company policy within thirty (30)
days of termination.
(e) DISABILITY. At the election of the Company, this Agreement shall
terminate on such date as may be selected by the Company after the Executive
shall have failed to render and perform the services required of him under this
Agreement during any period of 90 days within any 120 day period during the Term
because of physical or mental disability. In the event of such termination, the
Company shall have no further obligation for the payment of compensation or
benefits hereunder, except (i) for compensation accrued and unpaid through the
termination date and (ii) the payment of any disability insurance to which the
Executive may be
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entitled. If there should be any dispute between the parties as to the
Executive's physical or mental incapacity or disability pursuant to this Section
6(e), such question shall be settled by the opinion of an approved medical
doctor. For this purpose an approved medical doctor shall mean a medical doctor
selected by the Company and the Executive. If the parties cannot agree on a
medical doctor, each party shall select a medical doctor and the two doctors
shall select a third who shall be the approved medical doctor for this purpose.
The opinion of such medical doctor as to the matter in dispute shall be final
and binding on the parties.
(f) DEATH. In the event of termination as a result of the Executive's
death, the Company shall have no further obligation to the Executive's
representatives and heirs hereunder.
(g) FAILURE TO RENEW AGREEMENT. In the event the Company elects not to
extend the term of this Agreement as permitted by Section 3 and the Executive's
employment is terminated, the Executive shall be entitled to the Termination
Benefits described in Section 6(d). In the event that the Executive elects not
to extend the Term of this Agreement as provided in Section 3 and the
Executive's employment is terminated, the Executive shall be entitled to the
termination benefits described in Section 6(d)(vii).
7. NON-COMPETE, NON-SOLICITATION, PROPRIETARY INFORMATION, CONFIDENTIALITY
AND INVENTIONS AGREEMENTS.
(a) The Executive agrees to sign the Non-Compete, Non-Solicitation,
Proprietary Information, Confidentiality and Inventions Agreement, the form of
which is attached hereto as Exhibit "A" and, except as set forth in Section
6(d)(vi), to comply with such Agreement during the Term.
(b) LITIGATION AND REGULATORY COOPERATION. During the Executive's
employment, the Executive shall cooperate fully with the Company in the defense
or prosecution of any claims or actions now in existence or which may be brought
in the future against or on behalf of the Company which relate to events or
occurrences that transpired while the Executive was employed by the Company;
provided, however, that the Executive shall be permitted to give testimony and
appear as a witness in any proceeding in which such testimony or appearance is
required by law. The Executive's full cooperation in connection with such claims
or actions shall include, but not be limited to, being available to meet with
counsel to prepare for discovery or trial and to act as a witness on behalf of
the Company at mutually convenient times. During the Executive's employment, the
Executive also shall cooperate fully with the Company in connection with any
investigation or review of any federal, state or local regulatory authority as
any such investigation or review relates to events or occurrences that
transpired while the Executive was employed by the Company. The Executive also
agrees to provide reasonable cooperation to the Company on matters of the type
described in this Section 7(b) after termination of the Executive's employment.
The Company shall reimburse the Executive for any reasonable out-of-pocket
expenses incurred in connection with the Executive's performance of obligations
pursuant to this Section 7(b).
(c) REMEDIES. The Executive agrees that it would be difficult to measure
any damages caused to the Company which might result from any breach by the
Executive of the promises set forth in this Section 7, and that in any event
money damages would be an
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inadequate remedy for any such breach. Accordingly, the Executive agrees that if
the Executive breaches, or proposes to breach, any portion of this Section 7,
the Company shall be entitled, in addition to all other remedies that it may
have, to an injunction or other appropriate equitable relief to restrain any
such breach without showing or proving any actual damage to the Company.
8. GENERAL.
(a) ARBITRATION OF DISPUTES. Any controversy or claim arising out of or
relating to this Agreement or the breach thereof or otherwise arising out of the
Executive's employment or the termination of that employment (including, without
limitation, any claims of unlawful employment discrimination whether based on
age or otherwise) shall, to the fullest extent permitted by law, be settled by
arbitration in any forum and form agreed upon by the parties or, in the absence
of such an agreement, under the auspices of the American Arbitration Association
("AAA") in Boston, Massachusetts, the Employment Dispute Resolution Rules of the
AAA, including, but not limited to, the rules and procedures applicable to the
selection of arbitrators, except that the arbitrator shall apply the law as
established by decisions of the U.S. Supreme Court and the federal and state
courts sitting in Massachusetts in deciding the merits of claims and defenses
under federal law or any state or federal anti-discrimination law, and any
awards to the Executive for violation of any anti-discrimination law shall not
exceed the maximum award to which the Executive could be entitled under the
applicable (or most analogous) anti-discrimination or civil rights laws. In the
event that any person or entity other than the Executive or the Company may be a
party with regard to any such controversy or claim, such controversy or claim
shall be submitted to arbitration subject to such other person or entity's
agreement. Judgment upon the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof. The arbitrator shall have the authority
to grant the prevailing party reasonable costs and expenses, including
reasonable attorney's fees and the costs of the arbitration. This Section 8(a)
shall be specifically enforceable. Notwithstanding the foregoing, this Section
8(a) shall not preclude either party from pursuing a court action for the sole
purpose of obtaining a temporary restraining order or a preliminary injunction
in circumstances in which such relief is appropriate; provided that any other
relief shall be pursued through an arbitration proceeding pursuant to this
Section 8(a).
(b) INTEGRATION. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior
understandings and agreements between the parties, whether oral or written, with
respect to any related subject matter.
(c) ASSIGNMENT: SUCCESSORS AND ASSIGNS, ETC. Neither the Company nor the
Executive may make any assignment of this Agreement or any interest herein, by
operation of law or otherwise, without the prior written consent of the other
party; provided that the Company may assign its rights under this Agreement
without the consent of the Executive in the event that the Company shall effect
a reorganization, consolidate with or merge into any other corporation,
partnership, organization or other entity, or transfer all or substantially all
of its properties or assets to any other corporation, partnership, organization
or other entity; provided such successor is the functional equivalent of the
Company. This Agreement shall inure to the benefit of and be
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binding upon the Company and the Executive, their respective successors,
executors, administrators, heirs and permitted assigns.
(d) ENFORCEABILITY. If any portion or provision of this Agreement
(including, without limitation, any portion or provision of any section of this
Agreement) shall to any extent be declared illegal or unenforceable by a court
of competent jurisdiction, then that court shall have the power to alter such
provision to make it enforceable to the fullest extent permitted by law. The
remainder of this Agreement, or the application of such portion or provision in
circumstances other than those as to which it is so declared illegal or
unenforceable, shall not be affected thereby, and each portion and provision of
this Agreement shall be valid and enforceable to the fullest extent permitted by
law.
(e) WAIVER. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of any party to
require the performance of any term or obligation of this Agreement, or the
waiver by any party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
(f) NOTICES. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and delivered
in person or sent by a nationally recognized overnight courier service or by
registered or certified mail, postage prepaid, return receipt requested, to the
Executive at the last address the Executive has filed in writing with the
Company or, in the case of the Company, at its main offices, attention of the
Chief Executive Officer, and shall be effective on the date of delivery in
person or by courier or three (3) days after the date mailed.
(g) AMENDMENT. This Agreement may be amended or modified only by a written
instrument signed by the Executive and by a duly authorized representative of
the Company.
(h) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be taken to be
an original; but such counterparts shall together constitute one and the same
document.
9. CONSENT TO JURISDICTION.
(a) GOVERNING LAW. This contract shall be construed under and be governed
in all respects by the laws of the State of Massachusetts without giving effect
to the conflict of laws principles of such state.
(b) CONSENT TO JURISDICTION. To the extent that any court action is
permitted consistent with or to enforce Section 8(a) of this Agreement, the
parties hereby consent to the jurisdiction of the state and federal courts in
Boston, Massachusetts. Accordingly, with respect to any such court action, each
of the Executive and the Company (a) submits to the personal jurisdiction of
such courts; (b) consents to service of process; and (c) waives any other
requirement (whether imposed by statute, rule of court, or otherwise) with
respect to personal jurisdiction or service of process.
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11. TERMINATION OF PRIOR EMPLOYMENT AGREEMENTS. All prior employment
agreements between the Executive and the Company or any of its subsidiaries or
affiliates, including, but not limited to, the Employment Agreement dated April
15, 1997 by and between the Executive and Nextera Enterprises, LLC, and all
amendments and renewals thereof, are superseded by this Agreement and are
terminated and are null and void, except that the Executive shall be entitled to
any accrued and unpaid salary, bonus or benefits under his prior employment
agreement through the Effective Date.
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INTENDING TO BE LEGALLY BOUND by this Agreement and IN WITNESS THEREOF, the
undersigned parties have executed this Agreement as of this 24th day of October,
2000.
NEXTERA ENTERPRISES, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Its: Chief Operating Officer
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Xxxxxxx X. Xxxxxxxxx
State of Residence: Massachusetts
/s/ Xxxxxxx X. Xxxxxxxxx
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EXHIBIT A
NONCOMPETE, NON-SOLICITATION, PROPRIETARY INFORMATION,
CONFIDENTIALITY AND INVENTIONS AGREEMENT
This Agreement is made as of October _____, 2000, by and between Nextera
Enterprises Inc., a Delaware corporation, and the undersigned Executive.
Executive and Nextera have also entered into an Employment Agreement of even
date herewith (the "Employment Agreement"). In consideration of the employment
and continued employment of Executive by Nextera Enterprises, Inc., its
successors, subsidiaries and affiliates (collectively, "Nextera"), the Executive
agrees to certain restrictions on activities necessary to avoid conflicts of
interest, ensure the exclusivity of Executive's services and protect the
goodwill, confidential information, and legitimate business interests of Nextera
and its clients. To further these objectives, the Executive agrees to comply
with the following provisions of this Agreement ("Agreement") as follows:
NONCOMPETE/EXCLUSIVITY
During the period of employment by Nextera:
1. the Executive will devote substantially all of the Executive's
business time to the business of Nextera in accordance with Section 6
of the Executive's Employment Agreement with Nextera of even date
herewith;
2. will not engage in any business activity, current or proposed, which
competes with the services or products being developed, marketed or
sold by Nextera; and
3. will not, without prior written consent of Nextera, invest in, enter
into or assist any venture, enterprise, or endeavor which competes or
intends to compete with Nextera, other than as a less than five
percent (5%) stockholder of a publicly held company or a stockholder
of a publicly held company which derives none or an immaterial portion
(i.e., less than ten percent (10%)) of its revenues from services
which compete with the services of Nextera.
The Executive represents that, to the best of the Executive's knowledge,
employment by Nextera will not conflict with any agreement to which the
Executive is subject.
NON-SOLICITATION
1. The Executive acknowledges that the names and details of the firms
with whom the Executive's has dealings while employed by Nextera
constitute trade secrets belonging to Nextera. In order to preserve
Nextera's trade secrets, during employment with Nextera and for a
period of two (2) years after termination of the Executive's
employment with Nextera for any reason, which two (2) year period or
restrictions shall be reduced or eliminated as provided in the
Employment Agreement in the event that Nextera terminates Executive's
employment without Cause (as defined in the Employment Agreement) or
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Executive terminates his employment for Good Reason (as defined in the
Employment Agreement):
(a) the Executive will not solicit or cause to be solicited, or aid
in the solicitation of business from firms for which the
Executive did work or from whom the Executive actively solicited
business during the Executive's employment with Nextera or any of
its subsidiaries or affiliates; and
(b) the Executive will not directly or indirectly contact or solicit
any employee of Nextera with regard to present, future or
contemplated employment opportunities on behalf of himself, or
any other person, firm, corporation, governmental agency or other
entity.
PROPRIETARY INFORMATION
1. Proprietary Information refers to any information, not generally known
in the relevant trade or industry, which was obtained from Nextera or
any of its clients, past, present, or prospective, other than
information that is or becomes known to the public or trade through no
breach of this Agreement by the Executive.
2. Proprietary Information includes, but is not limited to, the following
items, whether or not labeled as such: customer lists, notes, drawings
and writings; computer programs (including source and object codes),
algorithms, systems, tools, spreadsheets, related documentation such
as user manuals, functional and technical specifications, system
descriptions, program documentation, output reports, terminal
displays, and data file contents; plans, process and preparations for
Nextera's current and proposed business activities; discoveries,
inventions, developments, ideas, research, engineering, designs, and
products; projects and improvements made or conceived in connection
with Nextera's customer and prospective customer's lists; and
marketing and financial data of Nextera and its clients.
3. The Executive agrees not to disclose the existence of or contents of
any documents, records, discs, tapes, and other media that contain
Proprietary Information, and will not copy or remove any such material
from Nextera or its client's premises, except as required by the
Executive's duties or as approved by an authorized officer of Nextera.
4. The Executive agrees to comply with all restrictions and regulations
of Nextera's clients concerning any and all information such clients
deem proprietary or confidential.
5. The Executive agrees that any material relating to any matter within
the scope of the business of Nextera, and any materials of clients of
Nextera, is and shall remain the property of Nextera or such clients,
as the case may be, and that upon termination of employment or at any
earlier time as requested by Nextera, the
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Executive will immediately deliver such material and all copies in
Executive's possession or control to Nextera or such clients, as the
case may be.
6. Nextera may provide the Executive with equipment (portable personal
computer, software, etc.) for Executive's use in the course of
employment by Nextera. The Executive acknowledges that any such
equipment will remain the exclusive property of Nextera, and the
Executive agrees to deliver such equipment to Nextera, as directed by
Nextera, upon termination of employment for any reason, or at any time
upon request of Nextera.
CONFIDENTIALITY
1. Except in connection with the Executive's duties for Nextera, the
Executive will not use or disclose to anyone outside Nextera, and will
not use any Proprietary Information or material relating to the
business of Nextera, or its clients, either during or after employment
by Nextera, except with the written permission of Nextera.
2. The Executive will not disclose to Nextera, and will not induce
Nextera to use any confidential information or material belonging to
others where such disclosure would, to the Executive's knowledge,
violate any rights of, or any duty owing to, a third party.
3. The Executive agrees not to discuss any information or respond to any
inquiries from the press or other information agencies regarding
Nextera without the express permission of Nextera, other than
responding in the ordinary course of business to inquiries regarding
the consulting industry generally or work done for clients of Nextera.
4. The Executive shall be permitted to give testimony and appear as a
witness in any proceeding in which such testimony or appearance is
required by law, provided the Executive reasonably furnishes notice to
Nextera in order to enable Nextera to seek a protective order, if
applicable.
INVENTIONS
1. The Executive agrees to disclose promptly and fully to Nextera all
developments, inventions, discoveries, improvements, and proposals for
new programs, systems, services, products, tools, or business
endeavors which are related to any business activity by Nextera,
current or proposed (collectively called "Developments").
2. The Executive hereby assigns to Nextera the Executive's entire right,
title, and interest in each and every work product or Development
related to any business activity by Nextera, current or proposed
(collectively called "Work Product"):
(a) made, developed or conceived solely by the Executive or jointly
with others during or in the course of the Executive's employment
by Nextera,
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(b) made, developed or conceived wholly or partially as the result of
any task assigned to the Executive or any work performed by the
Executive for or on behalf of Nextera or its clients, and/or
(c) made or developed with the use of Nextera facilities or
equipment.
3. The Executive agrees to grant to Nextera a right of first refusal to
market on a mutually agreed royalty basis, and a perpetual
non-exclusive license to use, each and every Work Product or
Development made, developed or conceived by the Executive during
employment by Nextera which is not covered under the preceding
paragraph.
4. During employment with Nextera, the Executive agrees to provide
Nextera with copies of any manuscripts produced by the Executive
relating to the business of Nextera or which refers to Nextera in any
manner for approval by Nextera prior to submission for publication.
5. The Executive does not, however, assign any Developments, if any,
relating in any way to Nextera business which were made prior to
employment with Nextera, which Developments, if any, are identified on
Exhibit A, attached to this Agreement.
GENERAL
1. The Executive's obligations under this Agreement shall survive the
termination of employment. The Executive understands that this
Agreement does not create an obligation of Nextera or any other party
to continue employment.
2. Nextera shall have the unrestricted right to assign this Agreement to
its parent company, its affiliates, and any and all successors in
interest.
3. It is agreed that Nextera may inform any person or entity subsequently
employing or evidencing an intention to employ, Executive of the
nature of the information Nextera asserts to be confidential, and may
inform said person or entity of the existence of this Agreement, and
provide to such persons or entity a copy of this Agreement.
4. Any breach of this Agreement by the Executive may cause irreparable
damage, and in the event of such a breach, Nextera shall have, in
addition to any remedies at law, the right to an injunction to prevent
or restrain a breach of the Executive's obligations hereunder.
5. Nextera's failure to exercise any rights under this Agreement does not
constitute a waiver of such right in the event of a subsequent
violation of this Agreement.
6. This Agreement shall be governed by the laws of the state of
Executive's employment.
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7. In the event a court of competent jurisdiction shall determine that
any provision in this Agreement is too restrictive in scope or
duration, then that court shall have the power to alter such provision
to make it enforceable to the fullest extent permitted by law. Such a
determination shall not have the effect of rendering any other
provision herein contained invalid.
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INTENDING TO BE LEGALLY BOUND by this Agreement and IN WITNESS THEREOF, the
undersigned parties have executed this Agreement as of this ______ day of
October, 2000.
NEXTERA ENTERPRISES, INC.
By:
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Its:
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XXXXXXX X. XXXXXXXXX
State of Residence: Massachusetts
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