EMPLOYEE AGREEMENT
THIS
AGREEMENT (the “Agreement”) is made and
entered into by and between Versa Card Inc., a Delaware corporation (“Versa Card”), and the person
whose signature appears below (“Employee”) as of the date
written below the signature of Versa Card. Versa Card desires to
employ Employee upon the terms and conditions of this Agreement and the offer
letter dated February 25, 2009 (the “Offer Letter”), the terms of
which are, by this reference, incorporated in this
Agreement. Execution of this Agreement by Employee is a condition
precedent to the obligation of Versa Card to employ or continue to employ
Employee and to pay any remuneration to Employee in respect of such
employment. In consideration of the employment and/or continued
employment of Employee, the parties agree:
1. Terms
of Employment. Versa
Card hereby employs Employee, on and subject to the terms and conditions of this
Agreement. Employee shall perform such duties as may be assigned by
the chief executive officer or the supervisor or manager of such Employee from
time to time. Employee agrees to the best of Employee's ability to
loyally and conscientiously perform the duties and obligations required of and
from Employee pursuant to this Agreement.
2. Term and Termination. The term
of employment of Employee shall commence on the Effective Date and shall
continue until termination of employment. Employee is an employee at
will and may be terminated by Versa Card for any reason or no reason, with or
without cause. Employee’s covenants in Sections 3, 4, 5, 6, and
7 of this Agreement shall survive the termination of Employee’s
employment.
3. Proprietary
Information. Versa
Card has invested and will continue to invest considerable effort and expense in
the development of software, technology, and other Proprietary
Information. Versa Card has taken steps and will continue to take all
reasonable steps necessary to protect the secrecy of Proprietary Information of
Versa Card. Employee acknowledges and agrees that Employee’s position
with Versa Card will afford Employee an opportunity to access Proprietary
Information of Versa Card. The misappropriation, unauthorized use, or
improper disclosure of Proprietary Information would cause irreparable harm to
Versa Card. Employee agrees to hold Proprietary Information in
confidence for the benefit of Versa Card. Employee shall not directly
or indirectly use or disclose, except as authorized in writing by Versa Card,
any Proprietary Information (whether or not developed or compiled by Employee)
for any purpose not directly related to Versa Card’s Business, and then only for
the benefit of Versa Card. Employee’s obligations as set forth in
this Section 3 shall remain in effect with respect to Trade Secrets for so long
as Versa Card is entitled to protection of rights in such Trade Secrets under
applicable law, and with respect to Confidential Information for the duration of
employment and for a period of five (5) years after termination of
employment. Upon request by Versa Card, and in any event upon
termination of Employee’s employment, Employee shall (a) promptly deliver
to Versa Card all property belonging to Versa Card including, without
limitation, all Work Product and Proprietary Information (and all embodiments
thereof) then in Employee’s custody, control, or possession, (b) delete
from all non-Versa Card owned or leased computers and media then in Employee’s
custody, control, or possession any electronic copies of Work Product and
Proprietary Information, and (c) destroy all tangible copies of Work
Product and Proprietary Information not located on Versa Card’s premises and
under Employee’s custody, control, or possession, as a condition precedent to
any remuneration payment due to Employee.
4. Assignment
of Works. Employee
acknowledges and agrees that all Copyrightable Works are “work made for hire” as
such term is defined in 17 U.S.C. Section 101, the ownership and copyright
of which shall be vested solely in Versa Card. Employee hereby irrevocably
assigns to Versa Card, and upon the future creation thereof automatically
assigns to Versa Card, without further consideration, the exclusive ownership of
all Work Product, and all physical embodiments thereof, including Copyrightable
Works, to the extent such Copyrightable Works are not “work made for hire” in
any applicable jurisdiction. Employee agrees (a) to disclose
immediately to Versa Card all Work Product; (b) to comply with all
record-keeping requirements of Versa Card; and (c) at the request and
expense of Versa Card, to do all things and sign all documents or instruments
reasonably necessary in the opinion of Versa Card to eliminate any ambiguity as
to the rights of Versa Card in such Work Product including, without limitation,
providing to Versa Card Employee’s full cooperation in any litigation or other
proceeding to establish, protect, or obtain such rights. In the event that
Versa Card is unable for any reason whatsoever to secure the Employee’s
signature to any document reasonably necessary or appropriate for any of the
foregoing purposes (including without limitation, renewals, extensions,
continuations, divisions, or continuations in part), Employee hereby irrevocably
designates and appoints Versa Card and its duly authorized officers and agents
as Employee’s agent and attorney-in-fact to act for and on behalf of Employee
for the limited purpose of executing and filing any such document and doing all
other lawfully permitted acts to accomplish the foregoing purposes with the same
legal force and effect as if executed by Employee. This appointment
is coupled with an interest and shall survive the death or disability of
Employee.
5. Covenants. Employee
covenants that Employee shall, during the term of employment and for a period
of eighteen (18) months (the “Restricted Period”) following
termination of Employee’s employment, observe the following separate and
independent covenants: (a) Employee will not perform services
comparable to the services Employee performed for Versa Card as an employee or
independent contractor for any Competing Enterprise within the Area;
(b) Employee will not, without the prior written consent of Versa Card,
either directly or indirectly, on Employee’s own behalf or in the service or on
behalf of others, solicit, contact, call upon, communicate with, or attempt to
communicate with any customer or prospect of Versa Card, or any representative
of any customer or prospect of Versa Card, with a view to providing services
competitive with the services sold, provided, or under development by Versa Card
during the period of two years immediately preceding the termination of
Employee’s employment with Versa Card, provided that the restrictions set forth
in this Section 5(b) shall (x) apply only to customers or prospects of
Versa Card, and representatives of customers or prospects of Versa Card, with
which Employee had Material Contact during such two-year period and (y) not
apply to customers or prospects of Versa Card, and representatives of customers
or prospects of Versa Card with whom Employee had a business relationship prior
to the date of this Agreement; and (c) neither Employee nor any Affiliate
will, without Versa Card’s prior written consent, either directly or indirectly,
on Employee’s own behalf or in the service or on behalf of
others: (i) solicit for employment, hire, or attempt to hire, or
engage or attempt to engage as an independent contractor, any person that is or
was employed by Versa Card, or (ii) solicit, encourage, or offer any
inducement to any employee or independent contractor of Versa Card to leave the
employ of Versa Card, whether or not such employee or independent contractor is
a full-time or temporary employee of Versa Card and whether or not such
employment or engagement is pursuant to written agreement and whether or not
such employment or engagement is at will, provided
that this restriction shall cease with respect to any former employee or
independent contractor of Versa Card once such former employee or independent
contractor has not been employed by Versa Card for at least nine (9)
months.
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6. Agreement Not to Disparage.
Employee
shall not publish, utter, broadcast, or otherwise communicate any information,
misinformation, comments, opinions, remarks, articles, letters, or any other
form of communication, whether written or oral, regardless of its believed
truth, to any person or entity (including, without limitation, any of Versa
Card’s customers, prospective customers, suppliers, and competitors, and any
industry trade group) which is adverse to, reflects unfavorably upon, or tends
to disparage Versa Card, the technology, products, prospects, or financial
condition of Versa Card, or any shareholder, officer, director, or employee of
Versa Card.
7. Remedies. Employee
acknowledges and agrees that Versa Card is engaged in the Business of Versa Card
in and throughout the Area, and that by virtue of the training, duties, and
responsibilities attendant to Employee’s employment by Versa Card and the
special knowledge of the Business and operations of Versa Card that Employee
will have as a consequence of Employee’s employment by Versa Card, great loss
and irreparable damage would be suffered by Versa Card if Employee were to
breach or violate the covenants and agreements of Employee contained in this
Agreement. Employee further acknowledges and agrees that each such
covenant and agreement is reasonably necessary to protect and preserve the
interest of Versa Card. Therefore, in addition to all the remedies
provided at law or in equity, Employee agrees that Versa Card shall be entitled
to a temporary restraining order, a temporary injunction, and a permanent
injunction, without the requirement of posting bond, to prevent a breach of any
of the covenants or agreements of Employee contained herein. Employee
agrees that the existence of any claim, demand, action, or cause of action of
Employee against Versa Card shall not constitute a defense to the enforcement by
Versa Card of any of the covenants or agreements of Employee or rights of
Employee.
8. Conflicting Obligations.
Employee
represents and warrants to Versa Card that, except as listed on Attachment
1 hereto, Employee is not subject to any agreement which prohibits,
restricts, or impairs in any way, Employee’s ability to perform the duties of
employment or to use Employee’s best efforts to promote the interests of Versa
Card.
9. Scope of Employment. Absent
the respective owner’s written authorization, Employee will not copy,
distribute, transmit, reverse engineer, decompile, disassemble, or transfer,
directly or indirectly, in any form, by any means, or for any purpose, the
Proprietary Information of any third party. Employee will not make
any improper use of any third party intellectual property. It is not,
nor will it ever be, a condition of employment that Employee violate the legal
rights or interests of any third party.
10. General Provisions. In the
event that any one or more of the provisions, or parts of any provisions,
contained in this Agreement shall for any reason be held invalid, illegal, or
unenforceable in any respect by a court of competent jurisdiction, the same
shall not invalidate or otherwise affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein. Specifically, but without
limiting the foregoing in any way, each of the covenants of the parties to this
Agreement contained herein shall be deemed and shall be construed as a separate
and independent covenant. This Agreement and the rights and obligations of
Versa Card hereunder may be assigned by Versa Card, and shall inure to the
benefit of, shall be binding upon, and shall be enforceable by any such
assignee. This Agreement and the rights and obligations of Employee
hereunder may not be assigned by Employee. The waiver by Versa
Card of any breach of this Agreement by Employee shall not be effective unless
in writing, and no such waiver shall operate or be construed as a waiver of the
same or another breach on a subsequent occasion. This Agreement
embodies the entire agreement of the parties relating to the employment of
Employee by Versa Card. No amendment or modification of this Agreement
shall be valid or binding upon Versa Card or Employee unless made in writing and
signed by the parties.
11. Governing
Law. This
Agreement and the rights of Versa Card and Employee shall be governed by, and
construed in accordance with, the laws of the State of Texas without regard to
its conflicts of law provisions. Employee agrees that any appropriate
state court sitting in Xxxxxx County, Texas or any Federal Court sitting in the
Southern District of Texas (Houston Division) shall have exclusive jurisdiction
of any case or controversy arising under or in connection with this Agreement
and shall be a proper forum in which to adjudicate such case or
controversy. Employee consents to the jurisdiction of such courts,
and irrevocably waives, to the fullest extent permitted by law, the defense of
an inconvenient forum to the maintenance of such suit, action, or proceeding in
any such court and further waives the right to object, with respect to such
suit, action, or proceeding, that such court does not have jurisdiction over
Employee. In any suit, arbitration, mediation, or other proceeding to
enforce any right or remedy under this Agreement or to interpret any provision
of this Agreement, the prevailing party will be entitled to recover its costs,
including reasonable attorneys’ fees, and all costs and fees incurred on appeal
or in a bankruptcy or similar action.
12. Definitions. The
following terms are used herein with the meanings thereafter
ascribed:
“Affiliate” means any person
or entity directly or indirectly controlling, controlled by, or under common
control with Employee. As used herein, the word “control” means the power
to direct the management and affairs of a person.
“Area” means the States of
Florida and Texas.
“Business” means providing
(a) care management and practice management services to medical providers
focusing on treatment of musculo-skeletal injuries resulting from accidents,
(b) related support services to attorneys that handle cases involving
musculo-skeletal injuries resulting from accidents, and (c) funding of
medical treatment for accident victims represented by attorneys that handle
cases involving musculo-skeletal injuries resulting from accidents.
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“Competing Enterprise” means
any person or any business organization of whatever form engaged directly in the
Business, but excluding any person or business with whom Employee had business
relationships prior to the date of this Agreement.
“Confidential Information”
means information, other than Trade Secrets, that is of value to its owner and
is treated by its owner as confidential, including, but not limited
to: (a) any useful process, formula, composition of matter, or
device which (i) is new or which Employee has a reasonable basis to believe
may be new, (ii) is being used or studied by Versa Card and is not
described in a patent, and (iii) is not readily ascertainable from
inspection of any commercially available product of Versa Card; (b) any
engineering, technical, or product specifications of any current or future
product of Versa Card; (c) any computer software (whether in source or
object code) and all flow charts, algorithms, coding sheets, design concepts,
test data, or documentation related thereto, whether or not copyrighted,
patented, or patentable; (d) information concerning Versa Card’s pricing
strategies, licensing strategies, and advertising campaigns;
(e) information regarding Versa Card’s executives, employees, personnel
assignments, customers, and suppliers; (f) Versa Card’s financial
information; (g) Versa Card’s training, policy, and procedure manuals;
(h) the terms and conditions of this Agreement; (i) information
received by Versa Card from a third party pursuant to an obligation of
confidentiality; and (j) any data or information defined herein as a Trade
Secret, but which is determined by a court of competent jurisdiction not be a
trade secret under applicable law.
“Copyrightable Works” means
all works of authorship including without limitation, computer programs, data
and databases, documentation, marketing collateral, and all embodiments thereof,
including all worldwide rights therein under copyright, trademark, trade secret,
confidential information, and any other applicable intellectual property
law.
“Effective Date” means the
date Employee first performs services for Versa Card, as established by Versa
Card’s records.
“Material Contact” with a
person or entity means: working with, supervising Versa Card’s dealings with,
obtaining Proprietary Information from, performing any action or service
resulting in payment from, or taking any other action which advances or is
intended to advance the business relationship between Versa Card and such person
or entity.
“Other Works” means all
inventions (whether or not patentable), discoveries, improvements, designs,
techniques, and business methods and all embodiments thereof, including all
worldwide rights therein under patent, copyright, trademark, trade secret,
confidential information, and any other applicable intellectual property
law.
“Proprietary Information”
means, collectively, Confidential Information and Trade
Secrets.
“Trade Secrets” means
information, without regard to form, including, but not limited to, technical or
nontechnical data, a formula, a pattern, a compilation, a program, a device, a
method, a technique, a drawing, a process, financial data, financial plans,
product plans, or a list of actual or potential customers or suppliers which is
not commonly known by or available to the public and which
information: (a) derives economic value, actual or potential,
from not being generally known to, and not being readily ascertainable by proper
means by, other persons who can obtain economic value from its disclosure or
use; and (b) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
“Works” means all
Copyrightable Works and all Other Works.
“Work Product” means all Works
that have been produced or created in whole or in part by Employee (a) on
or after the date of this Agreement, or (b) prior to the date of this
Agreement if Versa Card paid Employee for Employee’s services or for the
Works. Notwithstanding the foregoing, “Work Product” shall not
include Works that do not relate to Versa Card’s Business or to any then
existing research or development of Versa Card developed (i) entirely on
Employee's own time without the use of Versa Card's equipment, supplies, and
facilities, or reference to any of Versa Card's Proprietary Information, or
(ii) after termination of employment.
IN
WITNESS WHEREOF, Versa Card and Employee have executed this Agreement as of the
dates set forth below.
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EMPLOYEE:
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Accepted: Versa Card Inc. | |||
| By: |
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Xxxx
X. Xxxxxxx
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Xxxxxxx
Xxxxxxx, M.D.
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| Date: |
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Date: |
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ATTACHMENT
1
TO
Conflicting
Obligations Of Employee
None.
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