Exhibit 10.16
EMPLOYMENT AGREEMENT
This agreement is made as of the 5th day of April, 1994 by and between XXXXXX
SOFTWARE, INC., an Ohio corporation (the "Company"), and, Xxx Xxxxx an
individual residing at 0000 Xxxxxxxxxxx Xxxxx, Xxxxxxxxxxx, XX 00000 ("Xxxxx").
WHEREAS, Xxxxx wishes presently to render services to the company; and
WHEREAS, the Company wishes to retain the services of Xxxxx in furtherance
of its business;
NOW, THEREFORE, in consideration of the mutual promises and covenants of
the parties herein contained, the parties hereby agree as follows:
1. TERM: The term of this agreement commenced on April 5, 1994 and
remains in effect until Xxxxx'x resignation from the Company or the termination
of Xxxxx'x employment from the Company as specified in Paragraph 5.
2. DUTIES: During the Term of this Agreement, Xxxxx shall devote his
best efforts to render services as a Senior Developer. Xxxxx agrees to carry out
said duties in a diligent, trustworthy, skillful and competent manner as
directed from time to time by the Board of Directors of the Company.
3. COMPENSATION: As compensation for Xxxxx'x services during the Term
of this Agreement, the Company agrees to pay Xxxxx $80,000. Compensation may be
increased by the Board of Directors during the term of this contract at the
Board of Directors discretion.
4. EMPLOYMENT CONDITIONS: Xxxxx'x employment shall be governed by
Paragraphs 4 through 10 of this Agreement, including specifically Paragraph 8
regarding nondisclosure and non competition. After Xxxxx'x employment commences,
he shall provide the Company with a fully-executed Internal Revenue Service Form
W-9 prior to his first salary payment.
5. TERMINATION: Not withstanding Section 1 of this Agreement, the
parties shall have the right to terminate this Agreement upon the occurrence of
one or more of the following events:
a. A proven act of dishonesty by Xxxxx which results in loss or damage to
the company;
b. Willful and material neglect by Xxxxx of his duties hereunder;
c. Except for (a) and (b) above, material breach by Xxxxx of the
provisions of this Agreement provided that such breach is not cured by Xxxxx
within thirty (30) days after receipt of written notice from the Company
specifying the nature of such breach. Termination of this Agreement by the
Company pursuant of the foregoing provisions shall constitute "Termination for
Cause."
In the event of a Termination for Cause pursuant to this Xxxxxxxxx 0,
Xxxxx shall be paid up to the date of termination and shall have no further
claim for compensation against the Company. In the event this Agreement is
terminated for any reason whatsoever, Xxxxx agrees to immediately surrender and
cause to be delivered and returned to the Company all property and chattels of
the Company in his possession or under his control.
6. VACATION AND SICK LEAVE: Annually, Xxxxx shall be entitled to
fourteen (14) days of paid vacation to be taken and shall receive the same paid
vacation during each calendar year thereafter, provided that Xxxxx'x employment
has not been terminated prior thereto for "Cause" or by resignation, in which
cases Company shall not be obligated for unpaid vacations. In all other
termination cases, Xxxxx shall receive payment for unpaid vacations. Xxxxx shall
also be entitled to paid leave on all national holidays for which the other
employees of the company receive paid leave. Paid vacation may be increased at
the discretion of the Board of Directors.
Xxxxx shall be entitled to paid leave on account of illness in accordance
with further action of the Company's Board of Directors.
7. STOCK OPTION. Xxxxx (the "Optionee") is hereby granted a
nonqualified Stock Option for a total of thirty (30) Common Shares of the
Company, subject in all respects to the provisions of the Xxxxxx Software, Inc.
Stock Option Plan (herein called the "Plan") which was adopted by the Company on
March 3, 1992 and amended April 4, 1994 and which is incorporated herein by
reference. The option price shall be One Dollar ($1.00) per Share, payable in
cash by Optionee upon exercise as hereinafter provided. As a condition of
issuance of this Option, Optionee agrees to satisfy the Supplemental Wage
Withholding Obligation of the Company by remitting to the Company, at the
time(s) of exercise, any taxes required to be withheld under federal, State, or
local laws as a result of such exercise. All Stock options shall be restricted
in that at any time prior to twelve months from the date of vesting it must be
tendered by the holder for repurchase at the option price by the Company at such
time as Optionee ceases to render substantial services to the Company, and each
certificate shall bear a legend to this effect. After said date the restriction
shall lapse.
This Stock Option shall be exercisable in accordance with the following:
(a) Fifteen (15) Common shares may be purchased at the exercise price on
or after January 1, 1995. Fifteen (15) Common Shares may be purchased on after
January 1, 1996, for a total of Thirty (30) shares, provided that optionee has,
during the twelve (12) preceding months, rendered continuous service to the
Company in accordance with this Agreement. No Option shall be exercisable more
than ten (10) years after the date upon which the Optionee is so vested; and
(b) Optionee warrants that the Shares will be held by him solely for
investment purposes and not for resale; and
(c) The option may not be transferred by Optionee in any manner except, in
the event of death, those shares vested pursuant to Paragraph 7(a) will pass by
Will or by the laws of descent and distribution. This restriction shall be
binding upon the executors, administrators and heirs of Optionee; and Optionee
agrees to accept as binding and conclusive the determination of the Board of
Directors as to any questions relating to the Option or the Plan.
8. NONDISCLOSURE/NONCOMPETITION: Xxxxx covenants and agrees that, during such
time as that he is a shareholder of the Company, and during the entire period of
his consultation or employment with the company and for one (1) year thereafter
(however terminated):
(a) Xxxxx shall not, without prior written consent of the Company in each
instance obtained, directly, or indirectly, communicate, disclose, transmit,
disseminate, or otherwise publish or reveal in any form whatsoever to third
parties, the Proprietary Information (as hereinafter defined) imparted to or
learned by Xxxxx from the Company. "Proprietary Information" shall mean any and
all information, including, but not limited to, information concerning the
design and development of computer software used in the Company's business, not
generally known or recognized as standard practice, which is disclosed to,
developed by, or known by Xxxxx concerning any and all of the technology,
research, test procedures and results, inventions, concepts, documentation,
computer programming, processes and products, produced or developed by the
Company, its successors or assigns.
(b) Xxxxx shall take all reasonable measures to safeguard the Company's
Proprietary Information from becoming available to third parties.
(c) Xxxxx shall not solicit or induce or attempt to solicit or induce,
employees or sales representatives of the Company to terminate their employment
by or representation of the Company; nor shall Xxxxx solicit customers of the
Company or solicit or accept business, patronage or orders directly or
indirectly from existing or potential customers of the Company, whether on his
own account, or as a partner, joint venturer, employee, agent, representative,
consultant, or as a shareholder of any corporation. This covenant is of the
essence of this Agreement and shall be construed as independent of any other
provision of this Agreement; and the existence of any claim or cause of action
of Xxxxx against the Company, whether predicated on this Agreement or otherwise,
shall not constitute a defense to the enforcement of this covenant by the
Company.
(d) All documents, records, notebooks, computer reports, files, tapes,
notes or other memoranda of or contained the Proprietary Information made or
compiled by Xxxxx or made available by the Company to Xxxxx, including all
copies thereof, are and shall be and remain the property of the Company held by
Xxxxx only in trust for the Company and shall be delivered to the Company by
Xxxxx upon the termination of his consultation or subsequent employment by the
Company.
(e) In the event of a breach or threatened breach by Xxxxx of the
provisions of Subparagraphs (a), (c), and (d) hereof, the Company and its
successors, assigns and affiliates (as third-party beneficiaries) shall be
entitled to an injunction restraining such violation, it being understood that
the Company and its successors, assigns and affiliates may also pursue other
available remedies for such breach or threatened breach, including the recovery
of damages.
(f) Xxxxx shall disclose fully and promptly in writing to the Company all
ideas, discoveries, inventions and improvements (collectively "Improvements")
which are conceived of or developed by Xxxxx, alone or with others, during the
course of his consultation with or employment by the Company which relate to or
are capable of use in connection with the business of the Company, and Xxxxx
hereby assigns to the Company all rights, title, and interest in and to such
Improvements.
(g) Xxxxx shall furnish the Company, at its request and expense, such
assistance as may be required to obtain copyrights, patents and all similar
rights for such Improvements in any and all countries of the world, including
execution of copyright and/or patent applications and assignments or other
papers required to create, maintain or enforce the rights of the Company or its
nominee. All such Improvements are the property of the Company whether or not
patent applications or other papers are filed.
9. ASSIGNMENT: This agreement shall be assignable by the Company to any
successor or assigns of all or part of the Company without the consent of Xxxxx.
10. GOVERNING LAW: This Agreement contains the entire understanding of
the parties and shall not be modified except by a writing executed by both
parties. This Agreement supersedes and merges all previous agreements between
Xxxxx and Xxxxxx Software, Inc. This Agreement shall be construed under and
enforced by the laws of the State of Ohio.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"COMPANY": "Xxxxx"
XXXXXX SOFTWARE, INC.
By /s/ Xxxx. X. Xxxxxx Xx. 04/18/94 /s/ Xxxxxx X. Xxxxx
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Xxx Xxxxx
Its: President
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