EMPLOYMENT AGREEMENT
EXHIBIT 1.160
This
Employment Agreement (this “Agreement”) is made and entered into by and between
XXX.XXX, INC., a Minnesota corporation having its principal executive offices located at the
business address of 000 Xxxxxxxxx Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000 (the “Company”),
and XXXXXX XXXXXXX, an individual residing at the address indicated in Exhibit 1
(“Executive”). Company and Executive enter into this Agreement as of the date they each have
signed it, but the Agreement shall be effective as of the date established pursuant to Section 2.1,
below.
Whereas, Company desires to continue to employ Executive with the title indicated in
Exhibit 1 and the parties wish to establish certain terms and conditions of such employment
by entering into this Agreement; and
Whereas, Executive desires to continue such employment with Company on the terms and
conditions set forth in this Agreement.
Now Therefore, in consideration of the premises and the mutual covenants and
agreements contained herein, and with certain capitalized terms having the definitions provided in
Section 6 of this Agreement, the parties hereby agree as follows:
1. Employment; Regular Compensation. Company agrees to employ Executive with the title
indicated in Exhibit 1 and Executive agrees to serve in such capacity on the terms and
conditions set forth in this Agreement. Company shall pay Executive an initial base salary (the
“Base Salary”) as set forth in Exhibit 1. The Base Salary is expressed as an annual amount
solely for reference purposes, and shall be payable to Executive on a bi-weekly basis. In its sole
discretion, the Company may change Executive’s compensation.
2. Effective Date; Indefinite Term.
2.1 This Agreement shall be deemed in full force and effect as of the date it is executed by
the parties below, along with the execution of any exhibits hereto;
2.2 This Agreement has an indefinite term, and Executive’s employment by Company hereunder may
be terminated at will by either party at any time, with or without Cause (as defined in Section
6.1, below) or any reason, voluntary or involuntary, and with or without prior notice. Certain
provisions of this Agreement, however, as more fully set forth in Section 5, below, provide for the
payment of benefits to Executive upon the specified circumstances of termination of Executive’s
employment with Company, and certain other provisions, as more fully set forth below in Section 11,
below, may continue in effect beyond the date of such termination. Executive expressly
acknowledges and agrees that employment with Company is on an “at will” basis, and that this
Agreement does not provide a guarantee of continued employment, notwithstanding any other provision
in this Agreement.
3. Duties. Executive shall report to the Chief Executive Officer of the Company, or
such other individual as may be designated from time to time by the Board of Directors (the
“Board”). Executive shall faithfully and diligently perform all such acts
and duties, and furnish such services, as are assigned to Executive by such supervising
officer.
4. Efforts; Conflicts of Interest. During Executive’s employment by Company, Executive
shall devote his full business time and efforts to Company and its business during normal business
hours, and shall safeguard and promote its lawful interests. During Executive’s employment by
Company, Executive shall not, either directly or indirectly, engage in or enter into any business
or perform any services for any other person, firm, association, or corporation that conflicts with
Executive’s efforts to Company or with Company’s business interests, except for: (a) serving on the
board of directors of any other entity that is not in competition with Company (subject to
Company’s approval, which shall not be unreasonably withheld or delayed); (b) activities approved
in writing in advance by the Executive’s supervising officer or the Board, which approval shall not
be unreasonably withheld or delayed; or (c) passive investments in entities that do not involve
Executive providing any advice or services to the businesses in which the investments are made, or
which do not violate Company policy, including without limitation any policy relating to conflicts
of interest or business ethics.
5. Benefits Upon Termination of Employment.
5.1 By Company for Cause or by Executive Without Good Reason. If Executive’s
employment is terminated by Company for Cause or by Executive Without Good Reason, then Company’s
obligation to pay compensation and benefits under this Agreement shall immediately terminate,
except that: (a) Company shall pay to Executive and, if applicable, Executive’s heirs, any earned
but unpaid Base Salary through such termination date; and (b) Company shall permit Executive to
receive continuation of the benefits as set forth in Section 5.6, below, to the extent applicable.
Under such circumstances, no further payments or benefits (except as otherwise required by law)
shall be provided to Executive.
5.2 By Company for Nonperformance Due to Disability. If Executive’s employment is
terminated by Company for Nonperformance Due to Disability, then Company’s obligation to pay
compensation and benefits under this Agreement shall immediately terminate, except that: (a)
Company shall pay to Executive and, if applicable, Executive’s heirs, any earned but unpaid Base
Salary through such termination date; (b) Company shall provide Executive with such other payments
and benefits as may be permitted under the Company’s short- or long-term disability plans, to the
extent applicable, and subject to the terms and conditions of such plans, including without
limitation any eligibility requirements; and (c) Company shall permit Executive to receive
continuation of the benefits as set forth in Section 5.6, below, to the extent applicable.
5.3 By Company Other Than for Cause or by Executive for Good Reason. If Executive’s
employment is terminated by Company other than for Cause or by Executive for Good Reason, then
Company’s obligation to pay compensation and benefits under this Agreement shall immediately
terminate, except that: (a) Company shall pay to Executive and, if applicable, Executive’s heirs,
any earned but unpaid Base Salary through such termination date; (b) Company shall pay to Executive
any earned but unpaid incentive compensation or bonuses through the termination date, subject to
the
terms of the applicable bonus plan, including without limitation any eligibility requirements
or any limitations on such payment under applicable law; (c) Company shall permit Executive to
receive continuation of the benefits as set forth in Section 5.6, below, to the extent applicable;
and (d) Company shall pay to Executive, as severance benefits, the amount indicated in Section B of
Exhibit 1 hereto (the “Severance
Benefits”). The Severance Benefits shall be paid in a
lump sum, as soon as practicable following such termination date, subject to the following
conditions: (x) Executive shall execute a written, complete waiver and release of all claims
relating to Company, or Executive’s employment by Company or any termination thereof, within any
applicable consideration or execution periods and in a form that is acceptable to Company; and (y)
subject to confirmation by Company that Executive does not later revoke such waiver and release of
claims within any revocation period required by applicable law.
5.4 Death of Executive. In the event of Executive’s death, Executive’s employment and
all other obligations hereunder shall automatically terminate and the Company’s obligation to pay
compensation and benefits under this Agreement shall immediately terminate, except that Company
shall pay to Executive’s estate: (a) Executive’s Base Salary through the end of the calendar month
in which Executive’s death occurs; (b) Executive’s earned but unpaid incentive compensation or
bonuses through the date of Executive’s death, subject to the terms and conditions of the
applicable Bonus Plan, including without limitation any eligibility requirements or any limitations
on such payment under applicable law; and (c) Company shall permit Executive’s heirs to receive
continuation of the benefits as set forth in Section 5.6, below, to the extent applicable and
allowed by law and subject to the terms of such plans.
5.5 Change in Control. If Executive’s employment is terminated by Company other than
for Cause or by Executive for Good Reason at any time within twelve (12) months following a Change
in Control, then Company’s obligation to pay compensation and benefits under this Agreement shall
immediately terminate, except that: (a) Company shall pay to Executive and, if applicable,
Executive’s heirs, any earned but unpaid Base Salary through such termination date; (b) Company
shall pay to Executive any earned but unpaid incentive compensation or bonuses through the
termination date, subject to the terms of the applicable bonus plan, including without limitation
any eligibility requirements or any limitations on such payment under applicable law; (c) Company
shall permit Executive to receive continuation of the benefits as set forth in Section 5.6, below,
to the extent applicable; and (d) Company shall pay to Executive, as severance benefits, the amount
indicated in Section C of Exhibit 1 hereto
(the “Severance Benefits”). The Severance
Benefits shall be paid in a lump sum, as soon as practicable following such termination date,
subject to the following conditions: (x) Executive shall execute a written, complete waiver and
release of all claims relating to Company, or Executive’s employment by Company or any termination
thereof, within any applicable consideration or execution periods and in a form that is acceptable
to Company; and (y) subject to confirmation by Company that Executive does not later revoke such
waiver and release of claims within any revocation period required by applicable law.
Notwithstanding the foregoing provisions of this Section 5.5, however, Executive will not be
entitled to Severance Benefits under this Section 5.5 solely as a consequence of a relocation of
corporate offices that otherwise satisfies the definition of “Good Reason” if, in connection with
such relocation, the Company offers
Executive a relocation package at least as preferable as that provided in the Company’s
Relocation Policy (as of June 1, 2007).
5.6 Benefits Continuation. Upon termination of Executive’s employment, Company shall
permit Executive and, if applicable, Executive’s family members, to continue to participate in
Company’s employee benefits plans, to the extent required or allowed by law and subject to the
terms of such plans and applicable law.
5.7 Other Change in Control Provisions. In the event that Executive is terminated
without Cause within twelve months following a Change in Control, or resigns with Good Reason
within twelve months following a Change in Control, fifty percent (50%) of the Severance Benefits
to which Executive is entitled under this Agreement shall be deemed to be allocated as
consideration in respect of Executive’s post-termination non-competition obligations under the
Confidentiality, Invention Assignment and Non-Competition Agreement or any other similar agreement
that may be in effect with respect to Executive. In addition, in the event that Executive is
terminated without Cause within twelve months following a Change in Control or resigns with Good
Reason within twelve months following a Change in Control, and the Company and Executive determine
that the acceleration of benefits to Executive as a consequence of such Change in Control are
likely to result in the imposition of an excise tax on Executive pursuant to Section 280G of the
Internal Revenue Code, Executive and Company agree to make such modifications or changes in the
terms of this Agreement as are reasonably calculated to eliminate or mitigate such excise tax
liability and, to the extent possible, put the Executive and the Company in substantially the same
economic position as they would have been excluding the impact of Section 280G.
6. Definitions.
6.1 “Cause” shall mean termination of Executive’s employment by Company for one or more of the
following reasons: (a) Executive has breached or threatens to breach a fiduciary duty owed to
Company; (b) Executive has engaged or threatens to engage in dishonesty, fraud, gross negligence,
willful malfeasance or other acts of misconduct in the performance of Executive’s duties or during
the course of Executive’s employment; (c) upon the willful and continued failure by Executive
substantially to perform Executive’s duties with the Company (other than by reason of
Nonperformance Due to Disability as defined below); (d) Executive has willfully violated or
threatens to violate Company policies, or has willfully violated or threatens to violate any law,
rule or regulation (other than traffic violations or similar offenses) which result in material
injury to Company; or (e) Executive has violated or threatens to violate the terms of Sections 4,
7, or 8 of this Agreement or the material terms of the Confidentiality and Non-Competition
Agreement, or any other material breach of this Agreement.
6.2 “Change in Control” shall mean a change in the beneficial ownership of the Company’s
voting stock or a change in the composition of the Board which occurs as follows:
(i) Any “person,” including a “syndication” or “group” as those terms are used in Section
13(d)(3) of the Securities Exchange Act of 1934, is or becomes the beneficial owner, directly or
indirectly, of securities of the Company
representing 40% or more of the combined voting power of the Company’s then outstanding “Voting
Securities,” which is any security which ordinarily possesses the power to vote in the election of
the Board of Directors of a corporation without the happening of any precondition or contingency;
(ii) The Company is merged or consolidated with another corporation and immediately after
giving effect to the merger or consolidation less than 80% of the outstanding Voting Securities of
the surviving or resulting entity are then beneficially owned in the aggregate by (x) the
shareholders of the Company in their capacities as such immediately prior to such merger or
consolidation, or (y) if a record date has been set to determine the shareholders of the Company
entitled to vote on such merger or consolidation, the shareholders of the Company as of such record
date;
(iii) If at any time the following do not constitute a majority of the Board of Directors of
the Company (or any successor entity referred to in clause (ii) above): Persons who, prior to their
election as a Director of the Company (or successor entity if applicable) were nominated,
recommended or endorsed by a formal resolution of the Board of Directors of the Company or the
Nominating and Corporate Governance Committee thereof; or
(iv) The Company transfers substantially all of its assets to another corporation which is a
less than 80% owned subsidiary of the Company.
6.3 “Disability” shall have the meaning ascribed to such term or its variations, such as
“Disabled,” in Company’s long-term disability plan, or in the absence of such plan, a meaning
consistent with the definition of permanent and total disability under Section 22(e)(3) of the
Internal Revenue Code of 1986, as amended.
6.4 “Good Reason” shall mean that one or more of the following events has occurred and, after
giving Company written notice of the occurrence and of Executive’s intention to resign from
employment and Company not curing the event within 30 days of receipt of such written notice: (a) a
substantial adverse change in Executive’s duties or responsibilities, without Executive’s consent;
(b) a reduction in Executive’s Base Salary without Executive’s consent, or (c) a relocation of
Executive’s principal place of employment by more than a 50 mile radius surrounding Atlanta,
Georgia, without Executive’s consent .
6.5 “Nonperformance Due to Disability” shall mean that, if because of Disability, Executive is
unable to perform the essential functions of Executive’s job, with or without reasonable
accommodation, for a period of 30 consecutive days in any calendar year.
6.6 “Without Good Reason” shall mean termination or resignation of Executive’s employment by
Executive other than for Good Reason.
7. Non-Disparagement. Executive shall not at anytime make false, misleading or
disparaging statements about the Company, its parent, subsidiaries or affiliates, including any of
their products, services, management, directors, officers, employees, and customers.
8. Confidential Information and Covenants Not to Compete. The parties agree that
Executive’s services to Company are of a unique value and that confidential and proprietary
information about Company has been or will be obtained by, disclosed or otherwise made available to
Executive as a result of Executive’s employment with Company. Accordingly, as a condition to
Executive’s employment, Executive and Company also are entering into the Confidentiality, Invention
Assignment, and Non-Competition Agreement attached hereto as Exhibit 2 (the
“Confidentiality and Non-Competition Agreement”).
9. Dispute Resolution Process. All disputes between Executive and Company that
otherwise could be resolved in court shall be resolved instead by the following alternative dispute
resolution process (the “Process”).
9.1 Disputes Covered. This Process applies to all disputes between Executive and
Company, including those arising out of or related to this Agreement or Executive’s employment by
Company. Disputes subject to this Process include but are not limited to pay disputes, contract
disputes, legal disputes, wrongful termination disputes, and discrimination, harassment or civil
rights disputes. This Process applies to disputes Executive may have with Company and also applies
to disputes Executive may have with any of Company’s employees or agents so long as the person with
whom Executive has the dispute is also bound by or consents to this Process. This Process applies
regardless of when the dispute arises and will remain in effect after Executive’s employment with
Company ends, regardless of the reason it ends. This Process does not apply, however, to any
workers’ compensation or unemployment compensation claims, to the extent applicable under the
circumstances.
9.2 Negotiation and Mediation. Executive and Company agree to attempt to resolve all
disputes first by direct negotiations. If direct negotiations are not successful, the parties
shall then use mediation. They shall first attempt to agree upon a mediator. If unable to agree
upon a mediator, the parties shall request and conduct mediation under the American Arbitration
Association’s National Rules for the Resolution of Employment Disputes. Unless otherwise agreed by
the parties, any mediation sessions shall be held in Atlanta, Georgia. Temporary or interim
injunctive relief may be sought without mediating first. Any failure to mediate shall not affect
the validity of an arbitration award or the obligation to arbitrate.
9.3 Arbitration. If the dispute is not resolved through negotiation and mediation,
the parties shall request, and either party may demand, arbitration pursuant to the American
Arbitration Association’s National Rules for the Resolution of Employment Disputes. Unless
otherwise agreed by the parties, any arbitration hearing shall be held in Atlanta, Georgia. The
decision of the arbitrator shall be final and binding on the parties and on all persons and
entities claiming through the parties. Submission of their dispute to arbitration shall be the
exclusive means for resolving the dispute, to the exclusion of any trial by a court or jury. All
disputes that are not resolved by agreement (in mediation or otherwise) shall be determined by
binding arbitration.
9.4 Injunctive Relief. Either party may request a court to issue such temporary or
interim relief (including temporary restraining orders and preliminary injunctions) as may be
appropriate, either before or after mediation or arbitration is
commenced. The temporary or interim relief shall remain in effect pending the outcome of
mediation or arbitration. No such request shall be a waiver of the right to submit any dispute to
mediation or arbitration.
9.5 Employment Status. This Process does not affect the status of the employment
relationship between the parties, which as stated above in Section 2.2 shall be “at will;” nor does
this Process guarantee continued employment by the Company, require discharge only for cause, or
require any particular corrective action or discharge procedures.
10. Notification. Executive hereby authorizes the Company, or any of its employees or
designated representatives or counsel, to notify Executive’s actual or future employers or any
governmental agency of any terms of this Agreement or the Confidentiality and Non-Competition
Agreement and Executive’s responsibilities or obligations hereunder.
11. Severability; Survival of Provisions. If any part of this Agreement or any part
of the Confidentiality and Non-Competition Agreement is held by any legal authority to be
unenforceable or is severed by any legal authority, the remainder of such agreement shall be
enforced to the maximum extent allowed by applicable law. Certain provisions of this Agreement,
including confidential information and covenants not to compete (Section 8), dispute resolution
process (Section 9), notification (Sections 10 and 21), and governing law (Section 18) of this
Agreement, and all of the provisions of the Confidentiality and Non-Competition Agreement, shall
survive after any such legal determination, after Executive’s employment by Company ends regardless
of the reason it ends, and shall be enforceable regardless of any such determination or any claim
Executive may have against Company.
12. Relief for Breach. Because any breach or threatened breach by Executive of
Sections 4, 7, and 8 of this Agreement or of the Confidentiality and Non-Competition Agreement
would result in continuing material and irreparable harm to Company, and because it would be
difficult or impossible to establish the full monetary value of such damage, Company shall be
entitled to injunctive relief in the event of any such breach or threatened breach by Executive.
Injunctive relief is in addition to any other available remedy, including termination of this
Agreement and damages. In the event of any threatened breach of this Agreement by Executive,
Company may suspend any payment of Base Salary, incentives, bonuses, Severance Benefits and other
compensation due to Executive under this Agreement and, if Executive has breached this Agreement,
any remaining amounts to be paid under this Agreement shall be forfeited. In the event of any
breach or threatened breach by either party which results in court-ordered relief, the breaching
party shall reimburse the non-breaching party for its reasonable attorneys’ fees and other expenses
incurred to obtain such relief.
13. Waiver. No waiver of any provision of this Agreement shall be valid unless in
writing, signed by the party against whom the waiver is sought to be enforced. The waiver of any
breach of this Agreement or failure to enforce any provision of this Agreement shall not waive any
later breach.
14. Binding Effect. This Agreement is binding upon the parties and their personal
representatives, heirs, successors and permitted assigns.
15. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be an original and all of which, taken together, shall constitute a single
agreement.
16. Complete Agreement. This Agreement, together with the attached Confidentiality
and Non-Competition Agreement, is the final and complete expression of the parties’ agreement
relating to Executive’s employment by the Company. Without limiting the foregoing, this Agreement
replaces and supersedes any prior employment agreements between Executive and Company, or its
parent, subsidiaries, predecessors or affiliates, and each party to this Agreement hereby releases
and holds harmless the other party from any obligations or liability with respect thereto. The
parties acknowledge and agree that they are not entering into this Agreement in reliance on
anything not set out in this Agreement. This Agreement shall control over any inconsistent
policies or procedures of Company affecting Executive’s employment, whether in effect now or
adopted later, but Company’s policies and procedures that are consistent with this Agreement,
whether in effect now or adopted later, shall apply to Executive’s employment according to the
terms thereof.
17. Payroll Withholding. All payments of Base Salary, incentives, bonuses, Severance
Benefits and other compensation payable to Executive pursuant to this Agreement or otherwise shall
be subject to the customary withholding for income taxes as determined appropriate by the Company,
and shall be subject to other withholdings or deductions as required with respect to such
compensation paid by a corporation to any employee.
18. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Georgia, without giving effect to the provisions thereof relating to
choice of laws. Each party hereby irrevocably (a) consents to the jurisdiction and venue for any
legal action with the state courts in Xxxxxx County, Georgia and federal courts in the Northern
District of Georgia, Atlanta Division, unless injunctive relief is sought by Company and, in
Company’s judgment, that relief might not be effective unless obtained in some other venue; and (b)
waives any jurisdictional defenses (including personal jurisdiction and venue) to any such action.
These provisions do not give any party a right to proceed in court in violation of the Dispute
Resolution Process under Section 9, above.
19. Successors And Assigns. All rights and duties of Company under this Agreement
shall be binding on and inure to the benefit of its successors, assigns or any company which
purchases or otherwise acquires it or all or substantially all of its operating assets by any
method. This Agreement shall not be assignable by Executive other than the right to receive
benefits being passed by will or by the laws of descent and distribution.
20. Amendment. This Agreement contains the entire agreement of the parties relating
to the subject matter and may not be amended except by an instrument in writing signed by both
parties; it shall not be amended orally or by course of dealing. If Executive is employed by
Company prior to the date of this Agreement, this Agreement amends and restates the terms of
Executive’s employment in their entirety.
21. Notices. All notices required or permitted under this Agreement shall be in
writing and may be personally served or mailed by registered or certified U.S. mail, postage
prepaid and addressed as follows:
| If to Company: | Xxx.xxx, Inc. | |||
| 000 Xxxxxxxxx Xxxxxx Xxxxxx | ||||
| Xxxxx 000 | ||||
| Xxxxxxx, Xxxxxxx 00000 | ||||
| If to Executive: | Address specified in Exhibit 1 |
Any of the above addresses may be changed at any time by notice given as provided above; provided,
however, that any such notice of change of address shall be effective only upon receipt. All
notices, requests or instructions given in accordance herewith shall be deemed received on the date
of delivery, if hand delivered or telecopied, and 3 business days after the date of mailing, if
mailed by registered or certified mail, return receipt requested.
| XXX.XXX, INC. | EXECUTIVE | |||||||||
| By: | /s/ Xxxxxxx Xxxxxx | /s/ Xxxxxx Xxxxxxx | ||||||||
Name:
|
Xxxxxxx Xxxxxx | Name: | Xxxxxx Xxxxxxx | |||||||
Title:
|
Chief Executive Officer | Date: | June 26, 2007 | |||||||
| Date: June 26, 2007 | ||||||||||
Exhibit 1
Section A.
Executive:
|
XXXXXX XXXXXXX | |
Title:
|
Senior Vice President & Chief Marketing Officer | |
Base Salary:
|
$200,000.00 | |
Address:
|
0000 Xxxxxxx Xxxxxx | |
| Xxxxxxxx, XX 00000 |
Section X.
Xxxxxxxxx Benefits Payable Under Section 5.3: An amount equal to 6 months of Base Salary.
Section X.
Xxxxxxxxx Benefits Payable Under Section 5.5: An amount equal to 12 months of Base Salary.
In addition, in connection with any termination of Executive pursuant to Sections 5.2, 5.3, 5.4 or
5.5, the Company shall permit Executive and, if applicable, Executive’s family members, to continue
to participate in Company’s employee benefits plans for a period of 6 months from the effective
date of termination.
Exhibit 2
Confidentiality, Invention Assignment, and Non-Competition Agreement
Confidentiality, Invention Assignment, and Non-Competition Agreement
Xxx.xxx, Inc. and its subsidiaries, with a place of business located at 000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (“Xxx.xxx”), and the undersigned managerial
employee (“Employee”), agree, in connection with Employee’s employment by Xxx.xxx and in
consideration of the rights and benefits given to Employee in connection with such employment (the
receipt and consideration of which is hereby acknowledged) agree as follows.
| 1) | Confidentiality. |
| a) | During Xxx.xxx’s employment of Employee (whether in Employee’s current capacity or in any other future capacity), Xxx.xxx may disclose to Employee, either orally, in writing or by other means, trade secrets and proprietary information concerning Xxx.xxx’s business, finances, products, customers, vendors, computer technology and other technical, commercial or financial affairs of Xxx.xxx which are not in the public domain and which have been reasonably restricted by Xxx.xxx as confidential, hereinafter referred to as the “CONFIDENTIAL INFORMATION.” | ||
| b) | Employee shall hold in trust and confidence the CONFIDENTIAL INFORMATION and shall not disclose such CONFIDENTIAL INFORMATION to any third party, except as agreed by Xxx.xxx in writing. | ||
| c) | Employee agrees not to use the CONFIDENTIAL INFORMATION for any purpose other than in the performance of Employee’s duties as an employee of Xxx.xxx. | ||
| d) | Employee’s obligations in this Section 1 will not apply to any CONFIDENTIAL INFORMATION which was: (i) at the time of disclosure to Employee, in the public domain; (ii) after disclosure to Employee, published or otherwise, becomes part of the public domain through no fault of Employee; (iii) without a breach of duty owed to Xxx.xxx, in Employee’s possession at the time of disclosure to Employee; (iv) received after disclosure to Employee of such information from a third party who had a lawful right to and, without a breach of duty owed to Xxx.xxx, did disclose such information to Employee; or (v) independently developed by Employee without reference to CONFIDENTIAL INFORMATION. | ||
| e) | The covenants of confidentiality set forth herein (i) will apply after the date hereof to any CONFIDENTIAL INFORMATION disclosed to Employee and (ii) will continue and must be maintained from the date hereof until termination of Employee’s employment, plus (A) with respect to trade secrets (as defined by applicable law), at any and all times after termination of Employee’s employment during which such trade secrets retain their status as such under applicable law; |
| and (B) with respect to CONFIDENTIAL INFORMATION, for a period equal to the shorter of two (2) years after termination of Employee’s employment, or until such CONFIDENTIAL INFORMATION no longer qualifies as CONFIDENTIAL INFORMATION under this Agreement or applicable law. |
| 2) | Inventions |
| a) | Employee hereby irrevocably assigns to Xxx.xxx all of Employee’s rights to all Subject Inventions (as defined below) in the United States and all other countries and the right to claim priority therein. “Subject Invention” means any Invention (as defined below) which is conceived by Employee solely or jointly with others and (i) relates to the actual or anticipated business, research or development of Xxx.xxx, (ii) results from any work performed by Employee using any equipment, facilities, materials, Confidential Information or personnel of Xxx.xxx, or (iii) is suggested by or results from any task assigned or performed by Employee for or on behalf of Xxx.xxx. “Invention” means any idea, invention, discovery, improvement, innovation, design, process, method, formula, technique, machine, article of manufacture, composition of matter, algorithm or computer program, as well as improvements thereto. | ||
| b) | If Employee has previously conceived of any Invention or acquired any ownership interest in any Invention, which: (i) is Employee’s property, solely or jointly; (ii) is not described in any issued patent as of the commencement of Employee’s employment with Xxx.xxx; and (iii) would be a Subject Invention if such Invention was made while an Xxx.xxx employee; then Employee must, at Employee’s election, either: (i) provide Xxx.xxx with a written description of the Invention on Exhibit 2.1, in which case the written description (but no rights to the Invention) shall become the property of Xxx.xxx; or (ii) provide Xxx.xxx with the license described in Section 2(c) of this Agreement. | ||
| c) | If Employee has previously conceived or acquired any ownership interest in an Invention described above in Section 2(b) and Employee elects not to disclose such Invention to Xxx.xxx as provided above, then Employee hereby grants to Xxx.xxx a nonexclusive, paid up, royalty-free license to use and practice the Invention, including a license under all patents to issue in any country which pertain to the Invention. | ||
| d) | If Employee owns any issued United States Patent or foreign equivalent thereof, or Employee is an inventor, either individually or jointly, of any issued United States Patent or foreign equivalent thereof, Employee must provide the United States Patent number and/or foreign number for any such patent or foreign equivalent thereof in Exhibit 2.1. Otherwise, Employee represents that Employee owns no United States Patent or foreign equivalent thereof, individually or jointly, except those described on Exhibit 2.1. |
| e) | Employee agrees that should Xxx.xxx elect to file an application for patent, either in the United States or in any foreign country on a Subject Invention for which Employee is an inventor, Employee will execute all necessary documentation relating to the patent application, including formal assignments to Xxx.xxx, and will cooperate with attorneys or other persons designated by Company to provide all information necessary for the prosecution of the patent application(s) in the United States and any foreign country. Employee also agrees to assist Xxx.xxx in every proper way to maintain its patents during and following the period of employment including, but not limited to, the performance of all lawful acts, such as the giving of testimony in any interference proceedings, infringement suits, or other litigation, as may be deemed necessary or advisable by Xxx.xxx. |
| 3) | Copyrights. |
| a) | Employee agrees that any Works (as defined below) created by Employee in the course of Employee’s duties as an employee of Xxx.xxx are subject to the “Work for Hire” provisions contained in Sections 101 and 201 of the United States Copyright Law, Title 17 of the United States Code. “Work” means any copyrightable work of authorship, including without limitation, any technical descriptions for products and services, user’s guides, graphical works, audiovisual works, sound recordings, advertising materials, computer programs, web sites and content and any contribution to such materials. All right, title and interest to copyrights in all Works that have been or will be prepared by Employee within the scope of Employee’s employment with the Company will be the property of the Company. Employee further agrees that, to the extent the provisions of Title 17 of the United States Code do not vest the copyrights to any Works in the Company, Employee hereby assigns to the Company all right, title and interest to copyrights that Employee may have in the Works. | ||
| b) | If Employee owns any ownership interest in any Work, Employee will list any such Work on Exhibit 2.1. Otherwise, Employee will not claim any ownership rights in any Works, except those described on Exhibit 2.1. | ||
| c) | Employee also agrees to assist the Company in every proper way to maintain its Copyrights during and following the period of employment including, but not limited to, the performance of all lawful acts, such as the giving of testimony in any infringement suits or other litigation as may be deemed necessary or advisable by the Company. |
| 4) | Non-Solicitation of Customers. During the term of Employee’s employment by Xxx.xxx and for a period of six (6) months following the termination of such employment, Employee shall not, either directly or indirectly, on Employee’s behalf or on behalf of others (a) solicit, divert or appropriate to any Competing Business (as defined below) or (b) attempt to solicit, divert or appropriate to any Competing Business, any business from any customer or actively sought prospective customer of Xxx.xxx with whom Employee had contact on behalf of Xxx.xxx. “Competing |
| Business” means any business organization of whatever form engaged, either directly or indirectly, which is the same as, or substantially the same as, the Business of Xxx.xxx. “Business of Xxx.xxx” means the business of developing and providing Web hosting and related services and products including without limitation email services, website development and hosting and e-commerce services. |
| 5) | Non-Solicitation of Employees. During the term of Employee’s employment by Xxx.xxx and for a period of one (1) year following the termination of Employee’s employment, Employee shall not, either directly or indirectly, on Employee’s own behalf or on behalf of others, solicit, divert or hire away, or attempt to solicit, divert, or hire away, any person employed by Xxx.xxx at any facility where Employee performed services or any person employed by Xxx.xxx with whom Employee had regular contact in the course of Employee’s employment by Xxx.xxx. | |
| 6) | Contracts With Others |
| a) | Employee agrees to provide to the Company, upon the execution and delivery of this Agreement, a copy of the pertinent portions of any employment, consulting or subcontracting agreement and other similar documents, (described on Exhibit 2.1), executed by Employee with a former employer or any business or person with which Employee has been associated, which prohibits Employee during a period of time from: (i) competing with or participating in a business which competes with Employee’s former employer or business; (ii) soliciting personnel of the former employer or business to leave the former employer’s employment or to leave the business; or (iii) soliciting customers of the former employer or business on behalf of another business. | ||
| b) | Employee represents to the Company that Employee has not entered into any agreement with any other party which purports to require Employee to assign any Work or any Invention created, conceived or first practiced by Employee during a period of time which includes the date of Employee’s commencement of employment with the Company nor is Employee subject to any law, court order or regulation which purports to require such assignment, except as described on Exhibit 2.1. Employee will obtain and provide to the Company a copy of the above described agreement(s) and a reference to any such law, court order or regulation. |
| 7) | Non-Competition Employee acknowledges that he or she is being hired by Xxx.xxx because of his or her unique skills and abilities and that, by virtue of being hired by Xxx.xxx, Employee will learn special, unique and confidential matters pertaining to Xxx.xxx and the Business of Xxx.xxx. Employee agrees that, during Employee’s employment and for six (6) months after the termination of Employee’s employment for any reason (such period being the “Non-Competition Period”), Employee will not, directly or indirectly, (i) be employed (whether as an employee or as a consultant) for the purpose of providing Protected Services to a Competing Business in the Protected Territory, (ii) purchase or accept a beneficial interest in a Competing Business in the |
| Protected Territory (except that Employee may purchase publicly-traded securities in Competing Businesses so long as Employee’s holdings in such Competing Business do not exceed one percent (1%) of the aggregate outstanding shares in such Competing Business, or (iii) serve as on the board of directors or similar governing body of any Competing Business. For purposes of this Section, “Protected Territory” means (y) the area within fifty (50) miles of Xxx.xxx’s headquarters location on the date Employee’s employment is terminated and (z) the area within fifty (50) miles of Employee’s primary place of work on behalf of Xxx.xxx on the date Employee’s employment is terminated. For purposes of this Section, “Protected Services” means those services and other services reasonably related thereto that Employee is being hired to provide to Xxx.xxx. |
| 8) | Miscellaneous. This Agreement may not be amended, nor any obligation waived, except in a writing signed by Xxx.xxx and Employee. This Agreement is not assignable or delegable in whole or in part by Employee without the written consent of Xxx.xxx. This Agreement shall be governed and construed by the laws of the State of Georgia, without reference to conflict of law principles. An executed original of this Agreement may be delivered by facsimile, which shall be binding as an original. If any part of this Agreement is held by any legal authority to be unenforceable or is severed by any legal authority, the remainder of such agreement shall be enforced to the maximum extent allowed by applicable law. |
| XXX.XXX, INC. | EXECUTIVE | |||||||||
| By: | /s/ Xxxxxxx Xxxxxx | /s/ Xxxxxx Xxxxxxx | ||||||||
Name:
|
Xxxxxxx Xxxxxx | Name: | Xxxxxx Xxxxxxx | |||||||
Title:
|
Chief Executive Officer | Date: | June 26, 2007 | |||||||
| Date: June 26, 2007 | ||||||||||
Works of Employee
Inventions:
|
(None, unless listed here) | |||
Patents:
|
(None, unless listed here) | |||
Copyrights:
|
(None, unless listed here) | |||
