EXHIBIT 10.1
[JANUS CAPITAL GROUP LOGO]
000 XXXXXXX XXXXXX XXXXX X. XXXXXXX
XXXXXX, XX 00000 VP HUMAN RESOURCES
TEL 000-000-0000 WEB XXXXX.XXX
July 7, 2004
Xxxx X. Xxxxxx
00 Xxxxxx Xxxx Xxxx
Xxxxxx, XX 00000
Dear Xxxx,
I am pleased to extend an offer to you for the position Senior Vice
President, General Counsel and Chief Public Affairs Officer. The specific
terms and conditions of the offer are as follows.
COMPENSATION SUMMARY
1. The term of this letter agreement ("Agreement") is two years,
commencing on the first date of your employment, August 23, 2004
("Commencement Date") and ending on August 23, 2006 ("End Date").
This Agreement will automatically renew for one-year periods
commencing on the anniversary of the End Date and each anniversary
thereafter in the absence of notice to the contrary by either you or
the Company.
2. Total Annual Compensation
- $350,000 base salary. This salary will be non-decreasing
and reevaluated for increases no less than once each year at
the same time that the Company evaluates the compensation of
similarly situated employees.
- $650,000 annual bonus target. Your guaranteed minimum
bonus for your first year of employment is $725,000.
Thereafter, any bonus award will be at the Compensation
Committee's discretion.
- $500,000 annual target grant under the Company's Long
Term Incentive ("LTI") Plan
Your total first year annual total compensation will be targeted at
$1.575 million ($350,000 base, $725,000 bonus, $500,000 LTI). LTI
awards can be awarded in stock options, restricted stock and Janus
funds. Your initial LTI award and bonus will be awarded during the
first quarter of 2005 at the same time as grants are made to
comparable Company executives. The Company's Compensation Committee
reviews the base salary and bonus and LTI targets for Company
executives on an annual basis and may adjust cash and non-cash
compensation amounts and targets from time to time.
3. In addition, the Company will replace your unvested Knight Trading
equity with Janus Capital Group restricted stock and stock options,
valued at $1.5 million ($1 million in restricted stock and $500,000
in options, each valued as specified in the LTI Plan). Thereafter,
all awards to you under the LTI Plan will be at the Compensation
Committee's discretion. All grants to you under the LTI Plan shall
be subject to the terms and conditions of that Plan. The strike
price for the options and share price for the restricted stock shall
be determined as soon as practicable after your first day of active
employment with the Company, and in accordance with the terms of the
LTI Plan
A JANUS CAPITAL Group Company
[JANUS CAPITAL GROUP LOGO]
Those amounts of initial stock options and initial restricted stock will
then vest as follows:
- 1/3 - 6/30/05
- 1/3 - 6/30/06
- 1/3 - 6/30/07
These initial awards are subject to review and approval by the
Compensation Committee. If approved, these initial awards will be
made as soon as practical after your start date.
4. We also will provide a relocation package consistent with and
subject to the terms and conditions of the Company's executive
relocation program, which provides a comprehensive set of benefits.
Among the expenses the Company agrees to absorb are flight and
accommodations for you and your family to travel to find appropriate
housing and schools, as well as all temporary accommodations prior
to your locating and closing upon a permanent residence. All moving
and storage expenses for all property will also be covered as will
any brokerage fees you incur in selling your present residence and
all related consequential expenses. This list is intended to be
illustrative not inclusive. Your benefit will also include a
relocation allowance of one month's salary, and all expenses
(excepting the relocation allowance) will be grossed up to cover
taxes.
5. Change of Control - Upon the effective date of any "Change of
Control" (as defined in the enclosure) 100% of your unvested initial
stock and stock option awards (set forth in paragraph 3, above) will
vest. In addition, if before the second anniversary of the
Commencement Date you are discharged as a result of a Change of
Control, then you will be entitled to receive a separation payment
equal to the sum of your then-current base salary and target bonus
divided by 12 and then multiplied by the number of months that is 24
plus the number of months remaining in the initial term of this
agreement as of the effective date of the change of control. For
clarity and by way of illustration, if a you are discharged as a
result of a Change of Control that becomes effective 6 months after
the Commencement Date, the separation compensation would total $3.5
million ($350,000 base salary plus $650,000 target bonus divided by
12 and then multiplied by 42 months). Likewise, if before the second
anniversary of the Commencement Date you resign because as a result
of a Change of Control your job duties are "Materially Reduced" (as
defined in the enclosure), then you will be entitled to receive a
separation payment equal to the sum of your then-current base salary
and target bonus divided by 12 and then multiplied by twenty four.
In addition, if before the second anniversary of your first day of
active employment with the Company you are discharged as a result of
a Change of Control or you resign because as a result of a Change of
Control your job duties are Materially Reduced, then following your
separation the Company will provide you with a relocation package
similar to the relocation package describes in paragraph 4 above, in
order to enable you to relocate your family to a location of your
choosing within the 48 contiguous States. If on or after the second
anniversary of the Commencement Date you are discharged as a result
of a Change of Control or you resign because as a result of a Change
of Control your job duties are Materially Reduced, then you will be
entitled to receive a separation payment equal to eighteen months of
your then-current base salary and target bonus. In any case, your
entitlement to separation compensation of any kind from the Company,
and to vesting and any relocation allowance (if applicable) under
this paragraph, shall be conditioned upon your execution of and, if
applicable, non-revocation of, a standard form of general legal
release in substantially the form attached hereto.
6. Severance pay - In the event that your employment is terminated
other than for "Cause" (as defined in the enclosure) before the
second anniversary of your first day of active employment with the
Company, then you will be entitled to receive a separation payment
equal to two years of your then-current base salary and target bonus
and 100% of your unvested initial stock and stock option awards (set
forth in paragraph 3, above) will vest.
[JANUS CAPITAL GROUP LOGO]
In the event that your employment is terminated other than for Cause
on or after the second anniversary of your first day of active
employment with the Company, then you will be entitled to receive a
separation payment equal to eighteen months of your then-current
base salary and target bonus and 100% of your unvested initial stock
and stock option awards (set forth in paragraph 3, above) will vest.
In any case, your entitlement to separation compensation of any kind
from the Company, and to vesting under this paragraph, shall be
conditioned upon your execution of and, if applicable,
non-revocation of, a standard form of general legal release in
substantially the form attached hereto.
7. Confidential Information Agreement - On or before your first day of
employment with the Company, you will be required to sign and return
to the company the enclosed agreement to protect the Company's
confidential business information.
8. Expenses - During your employment, you shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred in
accordance with the Company's most favorable policies, practices and
procedures in effect for executives at your level.
9. Vacation - You will entitled to paid vacation in accordance with the
plans, policies and programs and practices of the Company as in
effect for executives at your level, but in no event less than four
weeks.
10. Indemnification and Directors and Officers' Insurance. The Company
shall indemnify and defend you in connection with claims asserted
against you based on your acts and omissions in connection with your
employment with the Company to the full extent permitted by Delaware
law and any related payments will be paid promptly by company. You
will be entitled to the same coverage pursuant to the Company's
Directors and Officers liability insurance policy as is extended to
similarly situated Company employees.
11. License to Utilize Speaking Materials. To the extent that you
develop, during your employment, works prepared for publication
("Publications") or disseminated by or for you in connection with
any speaking engagements in which you participate in any way
("Speaking Materials"), and such Publications and/or Speaking
Materials are assigned to the Company pursuant to any agreement, the
Company hereby grants you a perpetual, royalty free license to use
such Publications or Speaking Materials, as you see fit, during and
after your employment with the Company, subject only to your
obligation to refrain from misusing or improperly disclosing any
proprietary or confidential information or trade secrets belonging
to the Company or any affiliate or investment management client
thereof.
12. Prior Notice of Action to Enforce Restrictive Covenants.
Notwithstanding any other provision of any agreement between you and
the Company, no less than 72 hours before filing any motion seeking
emergency injunctive relief to enforce against you any restrictive
covenant, the Company shall provide you with written notice of its
intention to seek such relief, and copies of any pleadings that it
intends to file in support of such relief, together with all
proposed exhibits thereto. This clause is intended only to give you
advance notice of, and a reasonable opportunity to prepare to
respond to, any effort by the Company to obtain emergency injunctive
relief against you based upon a restrictive covenant. Accordingly,
in consideration of the Company's agreement to provide you with such
advance notice, you agree that the forum for any dispute involving
such application for emergency relief, and related relief on the
merits, shall be the federal or state courts situated in the Denver,
Colorado metropolitan area, and further agree that you will not seek
to utilize the advance notice required by this clause to commence,
or assert a right to commence, any action in any other forum
concerning the same or similar subject matter as gave rise to the
application of which the Company provides you with such advance
notice.
As a Janus employee you will be eligible to participate in the Janus
flexible benefits program, which includes medical, dental, vision, term
life, and disability, as well as many other innovative programs. These are
subject to modification from time to time.
Xxxx, we are thrilled at the prospect of having you on the Janus team.
Please let me know if there is anything further you would like to discuss
regarding Xxxxx or this offer. I can be reached at 000-000-0000. If the
[JANUS CAPITAL GROUP LOGO]
foregoing terms and conditions are acceptable to you, please sign and date
this letter as indicated below, make a copy for your files, and return the
original to us.
Very truly yours,
________________________________________
_________________________________
Xxxxx X. Xxxxxxx Acceptance:
Vice President Human Resources Xxxx X. Xxxxxx Date
on behalf of: /s/ Xxxx X. Xxxxx 7-15-04
Xxxxxx X. Xxxxxx
Chairman & CEO
Janus Capital Group
DEFINITIONS
For purposes of the Offer Letter from Janus Capital Group Inc. (the
"Company") to Xxxx X. Xxxxxx, Esq., (the "Executive") dated as of June 11, 2004
(the "Agreement"), certain terms shall be defined as set forth in this Addendum.
(1) "Change of Control" shall mean:
(a) An acquisition by any Person of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), of 35% or more of either (A) the then outstanding
shares of common stock of the Company (the "Outstanding Company Common Stock")
or (B) the combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); excluding, however, the following: (i)
any acquisition by the Company; (ii) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any entity
controlled by the Company, or (iii) any acquisition pursuant to a transaction
which complies with clauses (A), (B) and (C) of subsection (c) of this Paragraph
1; or
(b) A change in the composition of the Company's Board of Directors
(the "Board") such that the individuals who, as of the first day of any two year
period (the "Determination Date"), constitute the Board (such Board shall be
hereinafter referred to as the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board as of any date prior to the second
anniversary of the Determination Date; provided, however, for purposes of this
Paragraph 1, that any individual who becomes a member of the Board subsequent to
the effective date hereof, whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least a majority of those
individuals who are members of the Board and who were also members of the
Incumbent Board (or deemed to be such pursuant to this proviso) shall be
considered as though such individual were a member of the Incumbent Board; but,
provided, further, that any such individual whose initial assumption of office
occurs as a result of either an actual or threatened election contest (as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act) or other accrual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board shall not be so considered as a member
of the Incumbent Board; or
(c) Consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the assets of the
Company or the acquisition of the assets or stock of another entity ("Business
Combination"); excluding, however, such a Business Combination pursuant to which
(A) all or substantially all of the individuals and entities who are the
beneficial owners, respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such Business
Combination (the "Company Holders") will each beneficially own, directly or
indirectly the outstanding shares of common stock and other voting securities
entitled to vote generally in the election of directors, as the case may be, of
the corporation resulting from such Business Combination (including, without
limitation, a corporation which as a result of such transaction owns the Company
or all or substantially all the Company's assets either directly or through one
or more subsidiaries) in substantially the same proportions (relative to the
other Company Holders) as their ownership, immediately prior to such Business
Combination, of the Outstanding Company Common Stock and Outstanding Company
Voting Securities, as the case may be, (B) no Person (other than the Company or
any employee benefit plan (or related trust) of the Company or the corporation
resulting from such Business Combination) will beneficially own, directly or
indirectly, 35% or more of, respectively, the outstanding shares of common stock
of the corporation resulting from such Business Combination or the combined
voting power of the outstanding voting securities of such corporation entitled
to vote generally in the election of directors except to the extent that such
ownership existed prior to the Business Combination; and (C) individuals who
were members of the Incumbent Board will constitute at least a majority of the
members of the board of directors of the corporation resulting from such
Business Combination; or
(d) The approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
For purposes of this definition, "person" shall mean any individual, entity or
group (within the meaning of Paragraph 13(d)(3) or 14(d)(2) of the Exchange
Act).
(2) For purposes of the Agreement, "Cause" for termination shall mean:
(a) the continued failure of the Executive to perform substantially
the Executive's duties with the Company (other than any such failure resulting
from incapacity due to death or physical or mental illness, but including a
failure by Executive for any other reason to meet the Company's reasonable
performance expectations), after a written demand for substantial performance is
delivered to the Executive by the Board or its representative, which
specifically identifies the manner in which the Board believes that the
Executive has not substantially performed the Executive's duties and which gives
the Executive a reasonable opportunity to cure the deficiency noted therein; or
(b) the willful engaging by the Executive in illegal conduct or
gross misconduct that is materially and demonstrably injurious to the Company;
or
(c) conviction of a felony (other than a traffic related felony) or
guilty or nolo contendere plea by the Executive with respect thereto; or
(d) a material breach by the Executive of any material provisions of
any agreement between the Company and the Executive after the Executive is given
written notice of the material breach and a reasonable opportunity to cure; or
(e) a willful or reckless violation of a material regulatory
requirement or of any material written Company policy or procedure (including
without limitation the Company's Corporate Code of Business Conduct and Ethics
Policy and/or Ethics Rules), in either case that is materially and demonstrably
injurious to the Company;
(f) Executive's failure to obtain or maintain, or inability to
qualify for, any license required for the performance of Executive's material
job responsibilities, or the suspension or revocation of any such license held
by the Executive.
No act or failure to act on the part of the Executive shall be considered
"willful" unless it is done, or omitted to be done, by the Executive in bad
faith or without reasonable belief that the Executive's act or omission was in
the best interests of the Company. Any act, or failure to act, based upon
express authority given pursuant to a resolution duly adopted by the Board of
Directors with respect to such act or omission or based upon the advice of
counsel for the Company reflected in writing shall be conclusively presumed to
be done, or omitted to be done, by the Executive in good faith and in the best
interests of the Company.
(3) For purposes of the Agreement, the Executive's job duties shall be
deemed to have been "Materially Reduced" in the event of a material and
non-temporary reduction in Executive's authority or duties, that changes the
fundamental character of Executive's job to such an extent as to constitute a de
facto demotion, excluding for this purpose any action not taken in bad faith and
which is remedied by the Company promptly after receipt of notice hereof given
by the Executive and further excluding: (A) any mere change of reporting
relationship or of the Company's organizational chart; (B) any mere change in
title so long as the fundamental character of Executive's job is changed to such
an extent as to constitute a de facto demotion; (C) the mere exclusion or
removal of the position held by Executive from membership on or participation in
the business of the Company's Executive Committee, Management Committee,
Operating Council or similar body; and (D) the mere fact that the Company's
stock ceases to be publicly traded.
2
AGREEMENT TO PROTECT CONFIDENTIAL INFORMATION, ASSIGN INVENTIONS,
AND PREVENT UNFAIR SOLICITATION
This agreement is between Janus Capital Group Inc. ("Company") and Xxxx X.
Xxxxxx ("Employee").
1. PROTECTION OF TRADE SECRETS AND CONFIDENTIAL INFORMATION.
(a) DEFINITION OF "CONFIDENTIAL INFORMATION." "Confidential
Information" means all nonpublic information (whether in paper or electronic
form, or contained in Employee's memory, or otherwise stored or recorded)
relating to or arising the business of the Company or its affiliates, including,
without limitation, trade secrets used, developed or acquired by Company in
connection with its business. Without limiting the generality of the foregoing,
"Confidential Information" shall specifically include all information concerning
the manner and details of Company's operation, organization and management;
financial information and/or documents and nonpublic policies, procedures and
other printed, written or electronic material generated or used in connection
with Company's business; Company's business plans and strategies; the identities
of Company's customers and the specific individual customer representatives with
whom Company works; the details of Company's relationship with such customers
and customer representatives; the identities of distributors, contractors and
vendors utilized in Company's business; the details of Company's relationships
with such distributors, contractors and vendors; the nature of fees and charges
made to Company's customers; nonpublic forms, contracts and other documents used
in Company's business; all information concerning Company's employees, agents
and contractors, including without limitation such persons' compensation,
benefits, skills, abilities, experience, knowledge and shortcomings, if any; the
nature and content of computer software used in Company's business, whether
proprietary to Company or used by Company under license from a third party; and
all other information concerning Company's concepts, prospects, customers,
employees, agents, contractors, earnings, products, services, equipment,
systems, and/or prospective and executed contracts and other business
arrangements. "Confidential Information" does not include information that is in
the public domain through no wrongful act on the part of Employee.
(b) EMPLOYEE'S USE OF CONFIDENTIAL INFORMATION. Except in connection
with and in furtherance of Employee's work on Company's behalf, Employee shall
not, without Company's prior written consent, at any time, directly or
indirectly: (i) use any Confidential Information for any purpose; or (ii)
disclose or otherwise communicate any Confidential Information to any person or
entity; or (iii) accept or participate in any employment, consulting engagement
or other business opportunity that inevitably will result in the disclosure or
use of any Confidential Information.
(c) ACKNOWLEDGMENTS. Employee acknowledges that during Employee's
employment with Company, Employee will have access to Confidential Information,
all of which shall be made accessible to Employee only in strict confidence;
that unauthorized disclosure of Confidential Information will damage Company's
business; that Confidential Information would be susceptible to immediate
competitive application by a competitor of Company's; that Company's business is
substantially dependent on access to and the continuing secrecy of Confidential
Information; that Confidential Information is novel, unique to Company and known
only to Employee, Company and certain key employees and contractors of Company;
that Company shall at all times retain ownership and control of all Confidential
Information; and that the restrictions contained in this agreement are
reasonable and necessary for the protection of Company's legitimate business
interests.
(d) RECORDS CONTAINING CONFIDENTIAL INFORMATION. "Confidential
Records" means all documents and other records, whether in paper, electronic or
other form, that contain or reflect any Confidential Information. All
Confidential Records prepared by or provided to Employee are and shall remain
Company's property. Except in connection with and in furtherance of Employee's
work on Company's behalf or with Company's prior written consent, Employee shall
not, at any time, directly or indirectly: (i) copy or use any Confidential
Record for any purpose; or (ii) show, give, sell, disclose or otherwise
communicate any Confidential Record or the contents of any Confidential Record
to any person or entity. Upon the termination of Employee's employment with
Company, or upon Company's request, Employee shall immediately deliver to
Company or its designee (and shall not keep in Employee's possession or deliver
to any other person or entity) all Confidential Records and all other Company
property in Employee's possession or control. Employee understands and agrees
that compliance with this paragraph may require that data be removed from
Employee's personal computer equipment. Consequently, upon reasonable prior
notice, Employee agrees to permit the qualified personnel of Company and/or its
contractors' access to such computer equipment for that purpose. This agreement
shall not prohibit Employee from complying with any subpoena or court order,
provided that Employee shall at the earliest practicable date provide a copy of
the subpoena or court order to Company's President, it being the parties'
intention to give Company a fair opportunity to take appropriate steps to
prevent the unnecessary and/or improper use or disclosure of Confidential
Information and Confidential Records, as determined by Company in its sole
discretion.
(e) THIRD-PARTIES' CONFIDENTIAL INFORMATION. Employee acknowledges
that Company has received and in the future will receive from third parties
confidential or proprietary information, and that Company must maintain the
confidentiality of such information and use it only for authorized purposes.
Employee shall not use or disclose any such information except as authorized by
Company or the third party to whom the information belongs.
(f) EMPLOYEE'S FORMER EMPLOYERS' CONFIDENTIAL INFORMATION. Employee
warrants and represents that Employee is not a party to any agreement that
limits Employee's right or ability to perform services for Company, and that
Employee otherwise is free to assume the duties with Company contemplated by
this agreement. Employee shall not, during Employee's employment with Company,
improperly use or disclose to Company or any Company employee, agent or
contractor any proprietary
2
information or trade secret belonging to any former employer of Employee or any
other person or entity to which Employee owes a duty of nondisclosure.
2. NON-SOLICITATION. During Employee's employment with Company and for a
period of 12 months after termination of that employment, Employee shall not
without Company's prior written consent, directly or indirectly:
(a) cause or attempt to cause any employee, agent or contractor of
Company or any Company affiliate to terminate his or her employment, agency or
contractor relationship with Company or any Company affiliate; or interfere or
attempt to interfere with the relationship between Company and any employee,
agent or contractor; or hire or attempt to hire any employee, agent or
contractor of Company or any Company affiliate; or conduct business of any kind
with any Company employee, agent or contractor.
(b) solicit business from or conduct business with any customer or
client served by Company at any point during Employee's employment with Company;
or solicit business from or conduct any business with any person or entity that
was, during Employee's employment with Company, solicited or identified as a
business prospect by Employee or any other Company employee, agent or
consultant; or interfere or attempt to interfere with any transaction,
agreement, prospective agreement, business opportunity or business relationship
in which Company or any affiliate was involved at any point during Employee's
employment with Company.
3. INVENTIONS.
(a) DEFINITION OF COMPANY INVENTIONS. "Company Inventions" means all
ideas, processes, trademarks and service marks, inventions, discoveries, and
improvements to any of the foregoing, that Employee learns of, conceives,
develops or creates alone or with others during Employee's employment with
Company (whether or not conceived, developed or created during regular working
hours) that directly or indirectly arise from or relate to: (i) Company's
business, products or services; or (ii) work performed for Company by Employee
or any other Company employee, agent or contractor; or (iii) the use of
Company's property or time; or (iv) access to Company's Confidential Information
and/or Confidential Records.
(b) DISCLOSURE OF COMPANY INVENTIONS. Upon Company's request,
Employee shall promptly disclose to Company or its designee, in a manner
specified by Company in its sole discretion, all Company Inventions of which
Employee has any knowledge, irrespective of whether that knowledge is complete
or incomplete, and irrespective of whether any such Company Invention or any
aspect thereof has been described in or committed to writing, in whole or part,
by any other person.
(c) ASSIGNMENT. Employee hereby assigns to Company Employee's entire
right, title and interest in all Company Inventions, which shall be the sole and
exclusive property of Company whether or not subject to patent, copyright,
trademark or
3
trade secret protection. Employee also acknowledges that all original works of
authorship that are made by Employee (solely or jointly with others), within the
scope of Employee's employment with Company, and that are protectable by
copyright, are "works made for hire," as that term is defined in the United
States Copyright Act (17 U.S.C. Sections 101, et seq.). To the extent that any
such works, by operation of law, cannot be "works made for hire," Employee
hereby assigns to Company all right, title, and interest in and to such works
and to any related copyrights.
(d) ADDITIONAL INSTRUMENTS. Employee shall promptly execute,
acknowledge and deliver to Company all additional instruments or documents
deemed at any time by Company in its sole discretion to be necessary to carry
out the intentions of this paragraph. If the Company is unable, after reasonable
effort, to secure Employee's signature on any document needed to apply for or
prosecute any patent, copyright, or other right or protection relating to a
Company Invention, Employee hereby designates and appoints the Company and its
duly authorized officers and agents as Employee's agent and attorney-in-fact, to
act for and on Employee's behalf to execute, verify and file any such
applications and to do all other lawfully permitted acts to further the
prosecution and issuance of patents, copyrights and other rights and protection
thereon with the same legal force and effect as if executed by him. Such
appointment shall be irrevocable and coupled with an interest.
4. SURVIVAL. Employee's obligations under this agreement shall survive the
termination of Employee's employment with Company and shall thereafter be
enforceable whether or not such termination is claimed or found to be wrongful
or to constitute or result in a breach of any contract or of any other duty owed
or claimed to be owed to Employee by Company or any Company employee, agent or
contractor.
5. REMEDIES. Employee acknowledges that if Employee breaches any
obligation under this agreement, Company will suffer immediate and irreparable
harm and damage for which money alone cannot fully compensate Company. Employee
therefore agrees that upon such breach or threatened breach of any obligation
under this agreement, Company shall be entitled to a temporary restraining
order, preliminary injunction, permanent injunction or other injunctive relief,
without posting any bond or other security. This paragraph shall not be
construed as an election of any remedy, or as a waiver of any right available to
Company under this agreement or the law, including the right to seek damages
from Employee for a breach of any provision of this agreement, nor shall this
paragraph be construed to limit the rights or remedies available under
applicable law for any violation of any provision of this agreement.
6. OTHER AGREEMENTS. In the event of any direct conflict between any term
of this agreement and any term of any other agreement executed by Employee, the
terms of this agreement shall control. If Employee signed or signs any other
agreement(s) relating to or arising from Employee's employment with Company, all
provisions of such agreement(s) that do not directly conflict with a provision
of this agreement shall not be affected, modified or superseded by this
agreement, but rather shall remain fully enforceable according to their terms.
4
7. DISCLOSURE OF THIS AGREEMENT. At the earliest practicable date,
Employee shall provide a copy of this agreement to every business enterprise for
which Employee performs any employment, consulting or other professional or
business activities during the two year period following the termination of
Employee's employment with the Company, provided that in no event shall Employee
provide such an enterprise with a copy of this agreement later than the first
day of Employee's employment by or performance of services for such enterprise.
8. NOTIFICATION OF OTHER EMPLOYMENT. Employee will notify the Company of
any other employment, consulting arrangement or other professional or business
engagement accepted by Employee during the two year period following the
termination of Employee's employment with the Company, such notice to be
provided to the Company's corporate headquarters, by certified mail, return
receipt requested, no later than the close of the first business day following
the date on which such acceptance occurs.
9. NON-ASSISTANCE. Employee agrees not to assist any third person or
company in contesting or attacking Company's rights in and/or to any copyright,
patent, trademark or other trade secret or confidential or proprietary
information, except pursuant to subpoena or court order.
10. AT-WILL EMPLOYMENT. This agreement is not a contract of employment for
any particular term, and shall not be construed so as to imply or create any
legal obligation concerning the term of Employee's employment or the
circumstances under which Employee's employment with the Company may be
terminated. In the absence of a specific, definitive written employment contract
signed by both Employee and the Company's Chief Executive Officer ("CEO") or the
CEO's designee, all Company employees are employed "at will," meaning that
either the Company or Employee shall have the right to terminate the employment
relationship with or without cause, prior notice or other formality.
11. MISCELLANEOUS. (a) HEIRS AND ASSIGNS. This agreement shall be binding
upon Employee's heirs, executors, administrators or other legal representatives,
shall inure to the benefit of Company, its successors or assigns, and shall be
freely assignable by Company in its sole discretion, at any time; (b) GOVERNING
LAW. This agreement and all other disputes or issues arising from or relating in
any way to Company's relationship with Employee, shall be governed by the
internal laws of the State of Colorado, irrespective of the choice of law rules
of any jurisdiction. (c) SEVERABILITY. If any court of competent jurisdiction
declares any provision of this agreement invalid or unenforceable, the remainder
of the agreement shall remain fully enforceable. To the extent that any court
concludes that any provision of this agreement is void or voidable, the court
shall reform such provision(s) to render the provision(s) enforceable, but only
to the extent absolutely necessary to render the provision(s) enforceable and
only in view of the parties' express desire that Company be protected to the
greatest extent allowed by law from unfair competition and/or the
5
misuse or disclosure of Confidential Records, Confidential Information and/or
Company Inventions. (d) MODIFICATIONS. This agreement shall not be modified or
amended except by a written agreement signed by both parties. (e) DISPUTES. Any
action arising from or relating in any way to this agreement, or otherwise
arising from or relating to Employee's employment with Company, shall be tried
only in the state or federal courts situated in Denver, Colorado. The parties
consent to jurisdiction and venue in those courts to the greatest extent allowed
by law. The party that substantially prevails in any action to enforce any
provision of this agreement shall recover all costs and attorneys' fees incurred
in connection with the action.
Employee's signature: For Company:
__/s/ Xxxx X. Xxxxxx______________ ___________________________________
Print name: Print name:
__Xxxx X. Xxxxxx___________________ ___________________________________
Date: _7-16-04_____________________ Date: _____________________________
6
