EXHIBIT 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
BETWEEN
XXXXXX TECHNOLOGIES, INC.
AND
XXXXX X. XXXXXX
SEPTEMBER 20, 2002
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") by and
between Xxxxxx Technologies, Inc. (the "Company"), and Xxxxx X. Xxxxxx ("You" or
"Your")(collectively, the "Parties"), is entered into and effective as of the
20th of September, 2002 (the "Effective Date").(1)
WHEREAS, You are currently employed as Chief Executive Officer of the
Company pursuant to an Employment Agreement between the Company and You
effective December 1, 1994, which agreement has been amended from time to time
(as amended, the "Prior Agreement");
WHEREAS, You also currently serve as President and Chairman of the
Board of Directors (the "Board") of the Company;
WHEREAS, the Company desires that You continue to serve as Chief
Executive Officer, President, and Chairman of the Board of the Company, and You
desire to continue to serve in such capacity;
WHEREAS, the Company has agreed to continue to employ You in exchange
for Your compliance with the terms of this Amended and Restated Agreement;
WHEREAS, the Company and You desire to express the terms and conditions
of Your continued employment in this Amended and Restated Agreement; and
WHEREAS, the Company and You desire to modify the Prior Agreement,
which modification shall be contemporaneous with the effectiveness of this
Amended and Restated Agreement;
NOW, THEREFORE, the Parties agree:
1. Employment and Duties
A. Position. The Company shall employ You as Chief
Executive Officer. You shall also continue to serve as Chairman of the Board and
President of the Company, subject to the Company's Articles of Incorporation and
By-Laws.
B. Duties. You agree to perform all duties that are
consistent with Your positions as Chief Executive Officer, President, and
Chairman of the Board, and that may otherwise be assigned to You by the Board
from time to time.
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(1) Unless otherwise indicated, all capitalized terms used in this
Agreement are defined in the "Definitions" section attached as Exhibit A.
Exhibit A is incorporated by reference and is included in the Definition of
"Agreement."
C. Reporting. You shall report directly to the Board or
any other executive designated by the Board from time to time.
D. Devotion of Time. You shall devote yourself, and apply Your
best energy and skill to the service of the Company and the promotion of the
Company's interests, and You shall use Your best efforts in the performance of
Your services under this Agreement. The Parties agree that You may not, during
the Employment Period, be engaged in any business activity other than the
Company's business, whether or not such activity is pursued for gain, profit, or
other pecuniary advantage, including, but not limited to, management or
management consulting activities; provided, however, that You may (i) continue
to participate in the management and activities of any company of which You are
a fifty percent (50%) or greater stockholder as of the Effective Date, and (ii)
invest Your personal assets in businesses where the form or manner of such
investment will not require services on Your part conflicting with Your duties
under this Agreement, and in which Your participation is solely that of a
passive investor. You agree to abide by all rules and regulations established
from time to time by the Board. All commissions, fees, or other income earned
and received by You, if any, in furtherance of the business of the Company, or
its affiliates or from any other business or financial opportunity or endeavor
in which You are an active participant and not a passive investor, other than a
business of which You are a fifty percent (50%) or greater stockholder as of the
Effective Date, shall be accepted by You for the account of the Company, and
shall be remitted to the Company within three (3) days of Your receipt thereof.
E. Company Policies. You agree to comply with the
policies and procedures of the Company as may be adopted and changed from time
to time, including those described in the Company's employee handbook. If this
Agreement conflicts with such policies or procedures, this Agreement will
control.
F. Fiduciary Duties. As a director and officer of the
Company, You owe a duty of care and loyalty to the Company, as well as a duty to
perform Your Duties in a manner that is in the best interests of the Company.
You owe such duties to the Company in addition to duties imposed upon You under
applicable law.
2. Term. Your employment relationship with the Company is
at-will. You may terminate your employment with the Company at any time and for
any reason whatsoever simply by notifying the Company. Likewise, the Company may
terminate your employment at any time with or without cause or advance notice.
The period during which You are employed by the Company shall be referred to as
the "Employment Period."
3. Compensation.
A. Base Salary. During the Employment Period, the
Company will pay You an annual base salary of $328,900 ("Base Salary"), minus
applicable withholdings, in accordance with the Company's normal payroll
practices. On or before January 31 of each calendar year, the Compensation
Committee of the Board (the "Compensation Committee") shall review Your Base
Salary, and may, in its sole discretion, increase (but not decrease) Your Base
Salary based upon Your performance and the Company's performance. Any increase
in Your Base Salary shall be valid only if set forth in writing, executed by the
Compensation Committee.
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B. Annual Performance Bonus. During the Employment
Period, You will be eligible to earn an annual performance bonus (the
"Performance Bonus") with a target payment of fifty percent (50%) of Your then
current Base Salary if Your performance and the Company's performance meets
certain objectives and goals established from year to year by the Compensation
Committee. Your right to receive the Performance Bonus or any portion thereof
will be determined in the sole discretion of the Compensation Committee. The
Performance Bonus will be subject to all applicable withholdings and will paid
on or before January 31 of the calendar year immediately following the year for
which the Performance Bonus is to be paid. You will not receive any Performance
Bonus if, for any reason, You are not employed on the last day of the calendar
year for which the Performance Bonus is to be paid, except as set forth in
Sections 5B, 5C, and 6 below.
C. Benefits Plans. During the Employment Period, You are
eligible to participate in all benefit plans in effect for executives and
employees of the Company, subject to the terms and conditions of such plans.
D. Vacation. During the Employment Period, You are
entitled to paid vacation in accordance with the Company's vacation policy in
effect for senior executives from time to time; provided, however, that the paid
vacation to which You are entitled shall not be less than three (3) weeks per
calendar year.
E. Business Expenses. During the Employment Period, the
Company will reimburse You for all approved business expenses incurred by You in
the performance of Your duties under this Agreement in accordance with the
policies and procedures of the Company.
F. Car Allowance. During the Employment Period, the
Company shall (i) provide You with a four-door luxury automobile for Your use,
and will pay all expenses incurred in using the automobile, including, but not
limited to, fuel, maintenance, and insurance, or (ii) pay You an automobile
allowance of up to $700.00 per month (which allowance shall be increased by the
Consumer Price Index on each anniversary of the Effective Date) in accordance
with the Company's automobile allowance payment policies and/or practices in
effect from time to time.
4. Termination. This Agreement may be terminated at any time for
any reason, including, but not limited to, any of the following events:
A. Mutual written agreement between You and the Company
at any time;
B. Your death;
C. Your disability which renders You unable to perform
the essential functions of Your job even with
reasonable accommodation and which either continues
for (i) nine (9) consecutive months, or (ii) twelve
(12) months during any period of eighteen (18)
consecutive months;
D. Your resignation;
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E. For Cause. For Cause shall mean a termination by the
Company because of any one of the following events:
1. Your commission of any act of fraud, theft,
or embezzlement against the Company; or
2. Your material breach of this Agreement;
provided that the Company first shall have
delivered to You written notice of the
alleged breach, specifying the exact nature
of the breach in detail, and provided,
further, that You shall have failed to cure
or substantially mitigate such breach within
thirty (30) days after receiving notice of
such breach.
F. Without Cause. Without Cause shall mean any
termination of employment by the Company which is not
defined in sub-sections A-E above.
5. Company's Post-Termination Obligations
A. If (i) this Agreement terminates for the reasons set
forth in Sections 4A, B, C, D, or E above, and (ii) Section 6 below does not
apply, then the Company will pay You all accrued but unpaid wages, based on Your
then current Base Salary, through the termination date, as well as any approved
business expenses that have not been reimbursed as of the termination date. The
Company shall have no other obligations to You; however, You shall continue to
be bound by the terms of Exhibits A and B and all other post-termination
obligations to which You are subject, including, but not limited to, the
obligations contained in this Agreement.
B. If this Agreement terminates for any reason set forth
in Section 4F above, then (i) the Company will pay You a lump sum payment equal
to twelve (12) months of Your then current Base Salary, to be paid within five
(5) days after Your date of termination, (ii) the Company will pay You a
separation payment equal to twelve (12) months of Your then current Base Salary,
to be paid in equal installments on a monthly basis over a period of twenty-four
(24) months, beginning on the first day of the thirteenth month following Your
date of termination and ending on the first day of the thirty-sixth month
following Your date of termination, and (iii) the Company shall pay You a
pro-rata portion of the Performance Bonus for the year in which Your employment
terminates based upon Your performance and the Company's performance of the
objectives referenced in Section 3B as determined by the Compensation Committee
and the number of days You worked in the year in which Your employment is
terminated, such pro rata portion to be paid at the same time the Company pays
annual bonuses, if any, to other executive employees. If Your death occurs at
any time after Your employment terminates under Section 4F, then the Company
shall pay Your estate all remaining amounts payable to You under this Section
5B, which payments shall be made at the time and in the manner set forth in this
Section 5B. The Company shall have no other obligations to You. The separation
payments and/or benefits set forth in this Section 5B shall constitute full
satisfaction of the Company's obligations under this Agreement. The Company's
obligation to provide the payments and/or benefits set forth in this Section 5B
above shall be conditioned upon Your:
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(a) Execution of a Separation & Release
Agreement in a form prepared by the Company
by which You release the Company from any
and all liability and claims of any kind;
and
(b) Compliance with the post-termination
obligations set forth in Exhibits A and B
and all other post-termination obligations
to which You are subject, including, but not
limited, the obligations contained in this
Agreement.
If You do not execute an effective Separation & Release
Agreement as set forth above, the Company will not be obligated to provide any
payments or benefits to You under this Section 5B. The Company's obligation to
make the separation payments set forth in this Section 5B shall terminate
immediately upon any breach by You of any post-termination obligations to which
You are subject.
C. Notwithstanding anything in Section 5B or Section 6
hereof to the contrary, in the event this Agreement terminates or has been
terminated for any reason set forth in Section 4F or Section 6 hereof, and any
Liquidity Event (as defined below), whether voluntary or involuntary, occurs
prior to the payment of all or part of the amounts payable pursuant to Section
5B or Section 6 hereof, the Company shall be required to pay You a lump sum
payment equal to (a)(i) twenty-four months of Your Base Salary in effect on the
date of such termination, less (ii) all amounts previously paid to You pursuant
to Section 5B (i)-(ii) or Section 6(a) hereof, and (b) any amounts due to You
under Section 5B(iii) and/or Section 6(b) hereof. Such lump sum payment shall be
made no later than the date of the final distribution of assets on the shares of
capital stock of the Company in accordance with the provisions of the
Certificate of Incorporation of the Company, as amended, in connection with the
Liquidity Event and, shall constitute full satisfaction of the Company's
obligations under this Agreement; provided, however, that Your right to receive
the separation payments and benefits set forth in this Section 5C shall be
subject to the conditions set forth in Section 5B above. If Your death occurs at
any time after Your employment terminates under Section 4F or Section 6 and this
Section 5C applies, then the Company shall pay Your estate all remaining amounts
payable to You under this Section 5C, which payments shall be made at the time
and in the manner set forth in this Section 5C.
D. If (i) a Liquidity Event occurs within five (5) years
of Your date of termination, and (ii) upon the distribution of assets on the
shares of capital stock of the Company in accordance with the provisions of the
Certificate of Incorporation of the Company, as amended, in connection
therewith, the Liquidity Event constitutes a Qualified Liquidity Event (as
defined below), then the Company shall pay You a lump sum payment equal to (i)
twelve (12) months of Your Base Salary in effect on the date of termination and
(ii) any amounts remaining due pursuant to Section 5B or Section 6, to be paid
no later than the date of the final distribution of assets or other
consideration to the stockholders of the Company; provided, however, that Your
right to receive the separation payments and benefits set forth in this Section
5D shall be subject to the conditions set forth in Section 5B above.
A "Liquidity Event" shall mean any (i) liquidation,
dissolution or winding up of the Company; (ii) a sale of all or substantially
all of the assets and liabilities of the Company to a
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third party or (iii) a merger or consolidation of the Company with or into
another entity pursuant to which (a) the capital stock of the Company
outstanding immediately prior to the merger or consolidation is converted into
or exchanged for securities of another entity or cash or property and (b) the
stockholders of the Company immediately prior to the merger or consolidation own
less than 50% of the combined voting stock of the surviving company (or the
parent of the surviving company) in the merger or consolidation. For purposes of
this Agreement, a "Qualified Liquidity Event" shall mean a Liquidity Event that
(i) results in a distribution on the shares of capital stock of the Company in
accordance with the provisions of the Certificate of Incorporation of the
Company, as amended, of assets valued at a minimum of $10 million, after payment
or reservation of funds sufficient for payment of claims of all unsecured
creditors and reservation of funds sufficient for payment of any amounts
remaining due pursuant to Section 5B or Section 6 hereof or (ii), in the case of
a merger or consolidation, results in consideration (including any cash,
securities of another entity or property) to the holders of shares of capital
stock of the Company valued at a minimum of $10 million. If some or all of such
distribution or consideration is paid in property other than cash, the value of
the portion of such distribution or consideration not paid in cash shall be the
fair market value of such property as determined in good faith by the Board of
Directors of the Company.
6. Change of Control. If, within two (2) years after a Change of
Control, (i) You resign from Your employment, or (ii) the Company terminates
Your employment Without Cause, then (a) the Company will pay You the payments
and benefits set forth in Section 5B above, to be paid at such time and in such
manner as set forth in Section 5B above, and (b) the Company will reimburse Your
and Your eligible dependents' COBRA premium under the Company's major medical
group health plan on a monthly basis for a period of eighteen (18) months (the
"Change of Control Benefits"). The Change of Control Benefits shall be provided
to You in lieu of any benefits which You may be entitled to receive under
Section 5B above; provided, however, that Your right to receive the separation
payments and benefits set forth in this Section 6 shall be subject to the
conditions set forth in Section 5B above. The separation payments and benefits
set forth in this Section 6 shall constitute full satisfaction of the Company's
obligations under this Agreement. If Your death occurs at any time after Your
employment terminates under this Section 6, then the Company shall pay Your
estate all remaining amounts payable to You under this Section 6, which payments
shall be made at the time and in the manner set forth in this Section 6.
For purposes of this Agreement, "Change of Control" shall mean the
occurrence of any of the following events on or after the date of this
Agreement:
(i) any "person" (as that term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended
("Exchange Act")), who holds less than 20% of the combined
voting power of the securities of the Company, becomes the
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the
Company representing twenty-five percent or more of the
combined voting power of the securities of the Company then
outstanding; or
(ii) during any period of twenty-four (24) consecutive
months, individuals who at the beginning of such period
constitute all members of the Board of
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Directors of the Company shall cease, for any reason, to
constitute at least a majority of the Directors, unless the
election of each Director who was not a Director at the
beginning of the period was approved by a vote of at least
two-thirds of the Directors then still in office who were
Directors at the beginning of the period: or
(iii) the Company shall consolidate or merge with another
company and the Company is not the continuing or surviving
corporation, or shares of the Company's common stock are
converted into cash, securities, or other property, other than
a merger of the Company in which the holders of the Company's
common stock immediately prior to the merger have the same
proportionate ownership of common stock of the surviving
corporation immediately after the merger as they had in the
Company immediately prior to the merger; or
(iv) the Company shall sell, lease, exchange, or otherwise
transfer all or substantially all of its assets (in one
transaction or in a series of transactions); or
(v) the stockholders of the Company shall approve a plan
or proposal for the liquidation or dissolution of the Company.
7. Return of Materials. Upon the termination of Your employment
for any reason, You will return to the Company all of the Company's property,
including, but not limited to, keys, passcards, credit cards, customer lists,
rolodexes, tapes, software, computer files, marketing and sales materials, and
any other property, record, document or piece of equipment belonging to the
Company.
8. Release. During Your employment and after Your employment with
the Company ends, You consent to the Company's use of Your image, likeness,
voice, or other characteristics in the Company's products or services. You
release the Company from any causes of action which You have or may have arising
out of the use, distribution, adaptation, reproduction, broadcast, or exhibition
of such characteristics. You represent that You have obtained, for the benefit
of the Company, the same release in writing from all third parties whose
characteristics are included in the services, materials, computer programs and
other deliverables that You provide to the Company.
9. Severability. The provisions of this Agreement are severable.
If any provision of this Agreement is determined to be unenforceable, in whole
or in part, then such provision shall be modified so as to be enforceable to the
maximum extent permitted by law. If such provision cannot be modified to be
enforceable, the provision shall be severed from this Agreement to the extent
unenforceable. The remaining provisions and any partially enforceable provisions
shall remain in full force and effect.
10. Attorneys' Fees. In the event of litigation relating to this
Agreement, the prevailing party shall be entitled to recover attorneys' fees and
costs of litigation in addition to all other remedies available at law or in
equity.
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11. Waiver. Either Party's failure to enforce any provision of
this Agreement shall not act as a waiver of that or any other provision. Either
Party's waiver of any breach of this Agreement shall not act as a waiver of any
other breach.
12. Entire Agreement. This Amended and Restated Agreement,
including Exhibits A and B which are incorporated by reference, constitutes the
entire agreement between the Parties concerning the subject matter of this
Amended and Restated Agreement. Any post-termination obligations contained in
Exhibits A and B shall remain in full force and effect, and shall survive
cessation of Your employment. You acknowledge that the post-termination
obligations contained in the Exhibits A and B are valid, enforceable and
reasonably necessary to protect the interests of the Company, and You agree to
abide by such obligations. This Amended and Restated Agreement supersedes any
prior communications, agreements or understandings, whether oral or written,
between the Parties relating to the subject matter of this Amended and Restated
Agreements, including, but not limited to, the Prior Agreement. You and the
Company agree that this Amended and Restated Agreement modifies the Prior
Agreement by mutual written consent. Other than terms of this Amended and
Restated Agreement, no other representation, promise or agreement has been made
with You to cause You to sign this Amended and Restated Agreement.
13. No Acceleration or Triggering of Benefits. You and the Company
acknowledge and agree that the modification of the Prior Agreement by virtue of
You and the Company entering into this Amended and Restated Agreement did not
and will not result in the vesting, acceleration, or triggering of any
employment benefit in Your favor, including, but not limited to, any
post-termination payment obligation or any separation payment or benefit,
vesting of stock options, or any other right which You may have as a
shareholder, officer, director, or employee or under any agreement or
understanding between the Parties, including, but not limited to, the Prior
Agreement.
14. Release of Claims Under Prior Agreement. You release and
discharge the Company from any claim or liability, whether known or unknown,
arising out of or relating to the Prior Agreement.
15. Amendments. This Agreement may not be amended or modified
except in writing signed by both Parties.
16. Successors and Assigns. This Agreement shall be assignable to,
and shall inure to the benefit of, the Company's successors and assigns,
including, without limitation, successors through merger, name change,
consolidation, or sale of a majority of the Company's stock or assets, and shall
be binding upon You. You shall not have the right to assign Your rights or
obligations under this Agreement. The covenants contained in Exhibits A and B of
this Agreement shall survive cessation of Your employment with the Company,
regardless of who causes the cessation.
17. Governing Law. The laws of the State of Florida shall govern
this Agreement. If Florida's conflict of law rules would apply another state's
laws, the Parties agree that Florida law shall still govern.
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18. No Strict Construction. If there is a dispute about the
language of this Agreement, the fact that one Party drafted the Agreement shall
not be used in its interpretation.
19. Notice. Whenever any notice is required, it shall be given in
writing addressed as follows:
To Company: Xxxxxx Technologies, Inc.
000 Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Legal Department
To Executive: Xxxxx X. Xxxxxx
X0000 Xxxxx Xxxxx Xxxxxxx.
Xxxxxxx, Xxxxxxxxx 00000
Notice shall be deemed given and effective three (3) days after the
deposit in the U.S. mail of a writing addressed as above and sent first class
mail, certified, return receipt requested, or when actually received. Either
Party may change the address to which notices shall be delivered or mailed by
notifying the other party of such change in accordance with this Section.
20. Consent to Jurisdiction and Venue. You agree that any claim
arising out of or relating to this Agreement shall be brought in a state or
federal court of competent jurisdiction in Florida. You consent to the personal
jurisdiction of the state and/or federal courts located in Florida. You waive
(i) any objection to jurisdiction or venue, or (ii) any defense claiming lack of
jurisdiction or improper venue, in any action brought in such courts.
21. AFFIRMATION. YOU acknowledge that YOU HAVE carefully read this
Agreement, YOU know and understand its terms and conditions, and YOU HAVE had
the opportunity to ask the Company any questions YOU may have had prior to
signing this Agreement.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXX TECHNOLOGIES:
By: /s/ Xxxx Xxxxxxxxxx
-------------------------------------------
Xxxx Xxxxxxxxxx
Director
Date: September 20, 2002
Xxxxx X. Xxxxxx:
/s/ Xxxxx Xxxxxx
-------------------------------------------
Date: September 20, 2002
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EXHIBIT A
INVENTION ASSIGNMENT AND CONFIDENTIALITY AGREEMENT
THIS AGREEMENT is entered into this 20th day of September, 2002, by and
between Xxxxxx Technologies, Inc. ("DTI") and Xxxxx X. Xxxxxx (the "Employee")
for and in consideration of Employee's continued employment or engagement by DTI
and the compensation that Employee shall receive during Employee's employment or
engagement, the parties agree as follows:
1. Both during and after Employee's employment or engagement:
a. Employee shall not disclose to anyone outside DTI any
Confidential Information. "Confidential Information" is
defined as information which has not been made publicly
available by DTI or the third party owner of such information,
and
1. Which was developed by DTI, and relates to DTI's
past, present, and future business, including but not
limited to developments (defined below, technical
data, specifications, designs, concepts, discoveries,
copyrights, improvements, product plans, research and
development, personal information, personnel
information, financial information, customer lists,
leads, and/or marketing programs;
2. All documents marked as confidential and/or
continuing such information; and/or
3. All information DTI has acquired or received from a
third party in confidence.
b. Employee shall use Confidential Information only for DTI's
business purposes; and;
c. Employee shall use any information received in confidence by
DTI from any third party only as permitted by written
agreement between DTI and the third party; and
d. Employee shall not be permitted to justify any disregard of
the obligations of Employee hereunder by using any of the
Confidential Information to guide a search by it of
publications and other publicly available information,
selecting a series of items of knowledge from unconnected
sources and fitting them together by use of the integrated
disclosure of the information thereby to justify its disregard
of the obligation of confidence.
2. Employee shall not disclose to DTI, use in DTI's business, or cause DTI
to use any information or material which is confidential to any third
party unless DTI has a written agreement with the third party allowing
DTI to receive and use the confidential information or materials.
Employee will not incorporate into Employee's work any
material which is subject to the copyrights of any third party unless
DTI has the right to copy and incorporate such copyrighted material.
3. When Employee is no longer employed or engaged by DTI, Employee shall
return to DTI all DTI property, and any and all third party property,
including all Confidential Information, drawings, computer programs or
copies thereof, documentation, notebooks and notes, reports and any
other materials on electronic or printed media.
4. Employee hereby grants, transfers and assigns to DTI all of his rights,
title and interest, if any, in any and all Developments, including
rights to translation and reproductions in all forms or formats and the
copyrights and patent rights thereto, if any, and he agrees that DTI
may copyright said materials in DTI's name and secure renewal, reissues
and extensions of such copyrights for such period of time as the law
may permit. "Developments" is defined as any idea, invention, process,
design, concept, or useful article (whether the design is ornamental or
otherwise), computer program, documentation, literary work, audiovisual
work and any other work of authorship, hereafter expressed, made or
conceived solely or jointly by consultant during Employee's employment
or engagement, whether or not subject to patent, copyright or other
forms of protection that:
a. Are related to the actual or anticipated business, research or
Development of DTI; and/or
b. Are suggested by or result from any task assigned to Employee
or work performed by Employee for or on behalf of DTI.
Employee acknowledges that the copyrights in Developments created by
Employee in the scope of Employee's employment or engagement, belong to
DTI by operation of law, or may belong to a party engaged by DTI by
such contracted part. To the extent the copyrights in such works may
not be owned by DTI or such contracted party by operation of law,
Employee hereby assigns to DTI or such contracted party, as the case
may be, all copyrights (if any) Employee may have in Developments.
Items not assigned by this Section 4 are listed and described on the
attached "Schedule of Separate Works." Employee agrees not to include
any part of such items in the materials Employee prepares for DTI
unless and until such items are licensed or assigned to DTI under
separate written agreement.
At all times hereafter, Employee agrees to assist DTI in obtaining
patents or copyrights on any Developments assigned to DTI that DTI, in
its sole discretion, seeks to patent or copyright. Employee also agrees
to sign all documents, and do all things necessary to obtain such
patents or copyrights, to further assign them to DTI, and to reasonably
protect them and DTI against infringement by other parties at DTI
expense with DTI prior approval.
Employee irrevocably appoints any DTI-selected designee to act, at all
times hereafter, as his agent and attorney-in-fact to perform all acts
necessary to obtain patents and/or copyrights as required by this
Agreement if Employee (i) refuses to perform those acts or
(ii) is unavailable, within the meaning of the United States Patent and
Copyright laws. It is expressly intended by Employee that the foregoing
power of attorney is coupled with an interest.
Employee shall keep complete, accurate, and authentic information and
records on all Developments in the manner and form reasonably requested
by DTI. Such information and records, and all copies thereof, shall be
the property of DTI as to any Developments assigned DTI. Employee
aggress to promptly surrender such information and records at the
request of DTI as to any Developments.
5. In connection with any of the Developments assigned by Section 4,
Employee agrees:
a. To disclose them promptly to DTI, and
b. At DTI's request, to execute separate written assignments to
DTI and do all things reasonably necessary to enable DTI to
secure patents, register copyrights or obtain any other form
of protection for Developments in the United States and in
other countries. If Employee fails or is unable to do so,
Employee hereby authorizes DTI to act under power of attorney
for Employee to do all things to secure such rights.
c. To provide DTI with notice of any inadvertent disclosure of
Confidential Information related to any Development.
6. Without limitation of any other Agreement between Employee and DTI,
Employee shall not employ or engage or attempt to employ or engage the
services of any employee of DTI, either directly or through the agency
of a third party during the term of, or within six (6) months after,
the termination of Employee's employment or engagement with DTI.
7. DTI, its subsidiaries, licensees, successors or assigns, (direct or
indirect) are not required to designate Employee as author of any
Development when such Development is distributed publicly or otherwise.
Employee waives and releases, to the extent permitted by law, all
Employee's rights to such designation and any rights concerning future
modifications of such Developments.
8. Rights, assignments, and representations made or granted by Employee in
this Agreement, are assignable by DTI and are for the benefit of DTI's
successors, assigns, and parties contracted with DTI.
9. Miscellaneous Provisions.
(a) Amendments. The provisions of this Agreement may not be
amended, supplemented, waived or changed orally, but only by a
writing signed by the party as to whom enforcement of any such
amendment, supplement, waiver or modification is sought and
making specific reference to this Agreement.
(b) Further Assurances. The parties hereby agree from time to time
to execute and deliver such further and other transfers,
assignments and documents and do all matters and things which
may be convenient or necessary to more effectively and
completely carry out the intentions of this Agreement.
(c) Brokers. Each of the parties represents and warrants that such
party has dealt with no broker or finder in connection with
any of the transactions contemplated by this Agreement, and,
insofar as such party knows, no broker or other person is
entitled to any commission of finder's fee in connection with
any of these transactions. The parties each agree to indemnify
and hold harmless one another against any loss, liability,
damage, cost, claim or expense incurred by reason of any
brokerage commission or finder's fee alleged to be payable
because of any act, omission or statement of the indemnifying
party.
(d) Binding Effect. All of the terms and provisions of this
Agreement, whether so expressed or not, shall be binding upon,
inure to the benefit of, and be enforceable by the parties and
their respective administrators, executors, legal
representatives, heirs, successors and permitted assigns.
(e) Headings. The headings contained in this Agreement are for
convenience of reference only, are not to be considered a part
hereof and shall not limit or otherwise affect in any way the
meaning or interpretation of this Agreement.
(f) Severability. If any provision of this Agreement or any other
Agreement entered into pursuant hereto is contrary to,
prohibited by or deemed invalid under applicable law or
regulation, such provision shall be inapplicable and deemed
omitted to the extent so contrary, prohibited or invalid, but
the remainder hereof shall not be invalidated thereby and
shall be given full force and effect so far as possible. If
any provision of this Agreement may be construed in two or
more ways, one of which would render the provision invalid or
otherwise voidable or unenforceable and another of which would
render the provision valid and enforceable, such provision
shall have the meaning which renders it valid and enforceable.
(g) Survival. All covenants, agreements, representations and
warranties made herein or otherwise made in writing by any
party pursuant hereto shall survive the execution and delivery
of this Agreement and the termination of employment or
engagement of Employee.
(h) Waivers. The failure or delay of any party at any time to
require performance by another party of any provision of this
Agreement, even if known, shall not affect the right of such
party to require performance of that provision or to exercise
any right, power or remedy hereunder. Any waiver by any party
of any breach of any provision of this Agreement should not be
construed as a waiver of any continuing or succeeding breach
of such provision, a waiver of the provision itself, or a
waiver of any right, power or remedy under this Agreement. No
notice
to or demand on any party in any case shall, of itself,
entitle such party to any other or further notice or demand in
similar or other circumstances.
(i) Specific Performance. Each of the parties acknowledges that
the parties will be irreparably damaged (and damages at law
would be an inadequate remedy) if this Agreement is not
specifically enforced. Therefore, in the event of a breach or
threatened breach by any party of any provision of this
Agreement, then the other parties shall be entitled, in
addition to all other rights or remedies, to injunctions
restraining such breach, without being required to show any
actual damage or to post any bond or other security, and/or to
a decree for specific performance of the provisions of this
Agreement.
(j) Jurisdiction and Venue. The parties acknowledge that a
substantial portion of negotiations and anticipated
performance and execution of this Agreement occurred or shall
occur in Palm Beach County, Florida, and that, therefore,
without limiting the jurisdiction or venue of any other
federal or state courts, each of the parties irrevocably and
unconditionally (a) agrees that any suit, action or legal
proceeding arising out of or relating to this Agreement may be
brought in the courts of record of the State of Florida in
Palm Beach County or the court of the United States, Southern
District of Florida; (b) consents to the jurisdiction of each
such court in any suit, action or proceeding; (c) waives any
objection which it may have to the laying of venue of any such
suit, action or proceeding in any of such courts; and (d)
agrees that services of any court paper may be effected on
such party by mail, as provided in this Agreement, or in such
other manner as may be provided under applicable laws or court
rules in said state.
(k) Remedies Cumulative. Except as otherwise expressly provided
herein, no remedy herein conferred upon any party is intended
to be exclusive of any other remedy, and each and every such
remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at
law or in equity or by statute or otherwise. No single or
partial exercise by any party of any right, power or remedy
hereunder shall preclude any other or further exercise
thereof.
(l) Governing Law. This Agreement and all transactions
contemplated by this Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws
of the State of Florida without regard to principles of
conflicts of laws.
(m) Preparation of Agreement. This Agreement shall not be
construed more strongly against any party regardless of who is
responsible for its preparation. The parties acknowledge each
contributed and is equally responsible for its preparation.
(n) Entire Agreement. This Agreement represents the entire
understanding and agreement among the parties with respect to
the subject matter hereof, and supersedes all other
negotiations, understandings and representations (if any) made
by and among such parties.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXX TECHNOLOGIES:
By: /s/ Xxxx Xxxxxxxxxx
-----------------------------------------
XXXX XXXXXXXXXX
DIRECTOR
Date: September 20, 2002
XXXXX X. XXXXXX:
/s/ Xxxxx Xxxxxx
--------------------------------------------
Date: September 20, 2002
EXHIBIT B
NON-SOLICITATION AND NON-COMPETE AGREEMENT
THIS NON-SOLICITATION AND NON-COMPETE AGREEMENT ("Agreement") made as
of this 20th day of September, 2002 by and between Xxxxxx Technologies, Inc.,
and Illinois corporation with its principal office at 000 Xxxxx Xxxxx Xxxx,
Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 (hereinafter called "Xxxxxx") and Xxxxx
Xxxxxx, a resident of X0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxx 00000
(hereinafter "Employee").
WHEREAS, Employee is currently employed by Xxxxxx; and
WHEREAS, the parties wish to reflect their agreement as to Employee's
promises regarding Employee's solicitation and competition which have induced
Xxxxxx to continue to employ Employee at Employee's status with Xxxxxx, as well
as Daleen's extension of certain severance benefits to Employee.
NOW, THEREFORE, Employee and Xxxxxx (hereinafter sometimes referred to
collectively as the "parties" and separately as a "party") in consideration of
Employee's continued employment with Xxxxxx and the covenants hereinafter set
forth and other good and valuable consideration and intending to be legally
bound hereby, agree as follows:
1. Non-solicitation. Employee will not, at any time while
employed by Xxxxxx and for one (1) year after the termination of Employee's
employment with Xxxxxx for any reason whatsoever, directly or indirectly (by
assisting or suggesting to another, or otherwise) solicit or otherwise attempt
to induce or accept the initiative of another in such regard, alone or by
combining or conspiring with anyone, any employees, officers, directors, agents,
consultants, representatives, contractors, suppliers, distributors, customers or
other business contacts (collectively, "Business Affiliates") of Xxxxxx to
terminate or modify its position as an employee, officer, director, agent,
consultant, representative, contractor, supplier, distributor, customer or
business contact with Xxxxxx or to compete against Xxxxxx.
2. Non-competition.
(a) Employee shall not while employed by Xxxxxx, and for a
period of one (1) year after the termination of said employment for any reason
whatsoever (the "No-Compete Period"), directly or indirectly, as owner, officer,
director, employee, agent, lender, broker, investor, consultant or
representative of any corporation or as owner of any interest in, or as an
employee, agent, consultant, partner, affiliate or in any other capacity
whatsoever or representative of any other form of business association, sole
proprietorship or partnership, conduct or be related to any business in
competition with any business of Xxxxxx now or in the future, including without
limitation, in the Billing and Customer Care industry (herein referred to as the
"Competitive Business") anywhere within the territories, nor as to certain
customers anywhere in the United States, both listed on the "Territories and
Customers" Exhibit to this Agreement, made a part hereof, including without
limitation, the solicitation of any customers, who were at any time customers of
Xxxxxx and in connection with a business which is competitive with the
Competitive Business, except that such competitive activity will be
permitted as to business solicitation of and competition with Xxxxxx as to any
entity listed on a Schedule to this Agreement made part hereof identified as a
"No-Compete Exception," if any.
(b) In addition to, and not in limitation of, the other
provisions hereof or of any other agreement between Employee and Xxxxxx,
Employee shall not at any time in any manner other than in the ordinary course
of good faith competition only as permitted herein interfere with, disturb,
disrupt, decrease or otherwise jeopardize the business of Xxxxxx or do or permit
to be done anything which may tend to take away or diminish the trade, business
or good will of Xxxxxx or give to any person the benefit or advantage of
Company's or Seller's methods of operation, advertising, publicity, training,
business customers or accounts, or any other information relating or usefully to
Daleen's business.
3. Legal Effect. The foregoing covenants of Employee shall be deemed
severable, and the invalidity of any covenant shall not affect the cause of
action by Employee against Xxxxxx predicated on this Agreement or otherwise,
shall not constitute a defense to the enforcement by Xxxxxx of these covenants.
Daleen's failure to object to any conduct in violation of this Agreement shall
not be deemed a waiver by Xxxxxx, but Xxxxxx may, if it wishes, specifically
waive any part or all of those covenants to the extent that such waiver is set
forth in writing duly authorized by Daleen's Board of Director's.
Employee acknowledges and confirms that the length of the term and
geographical restrictions contained herein are fair and reasonable and not the
result of overreaching, duress or coercion of any kind. Employee further
acknowledge and confirms that his full, uninhibited and faithful observance of
each of the covenants contained in this Agreement will not cause him any undue
hardship, financial or otherwise, and that enforcement of each of the covenants
contained in this Agreement will not impair his ability to obtain employment
commensurate with his abilities and on terms fully acceptable to him or
otherwise to obtain income required for the comfortable support of him and his
family and the satisfaction of the needs of his creditors. Employee acknowledge
and confirms that his special knowledge of this business of Xxxxxx is such as
would cause Xxxxxx serious injury and loss if he were to use such ability and
knowledge to the benefit of a competitor or were to compete with Xxxxxx.
In the event that any court shall finally hold that the time or
territory or any other provision stated in this Agreement constitutes an
unreasonable restriction upon Employee, Employee hereby expressly agrees that
the provisions of this Agreement shall not be rendered void, but shall apply as
to time and territory or to such other extent as such court may judicially
determine or indicate constitutes a reasonable restriction under the
circumstances involved. Employee hereby agrees that in the event of the
violation by him of any of the provisions of this Agreement, Xxxxxx will be
entitled if it so elects, to institute and prosecute proceedings at law or in
equity to obtain damages with respect to such violation or to enforce the
specific performance of this Agreement by Employee or to enjoin Employee from
engaging in any activity in violation hereof without any requirement on the part
of Xxxxxx to post any bond.
In the event Xxxxxx should bring any legal action or other proceeding
for the enforcement of this Agreement, the time for calculating the No-Compete
Period or terms of any other restriction herein shall not include the period of
time commencing with the filing of legal action
or other proceeding to enforce the terms of this Agreement through the date of
final judgment or final resolution, including all appeals, if any, of such legal
action or other proceeding.
4. Miscellaneous Provisions.
The provisions of this Agreement may not be amended, supplemented,
waived or changed orally, but only by a writing signed by the party as to whom
enforcement of any such amendment, supplement, waiver or modification is sought
and making specific reference to this Agreement. All of the terms and provisions
of this Agreement, whether so expressed or not, shall be binding upon, inure to
the benefit of, and be enforceable by the parties and their respective
administrators, executors, legal representatives, heirs, successors and
permitted assigns. The headings contained in this Agreement are for convenience
of reference only, are not to be considered a part hereof and shall not limit or
otherwise affect in any way the meaning or interpretation of this Agreement. The
failure or delay of any party at any time to require performance by another
party of any provision of this Agreement, even if known, shall not affect the
right of such party to require performance of that provision or to exercise any
right, power or remedy hereunder. Any waiver by any party of any breach of any
provision of this Agreement should not be construed as a waiver of any
continuing or succeeding breach of such provision, a waiver of the provision
itself, or a waiver of any right, power or remedy under this Agreement. No
notice to or demand on any party in any case shall, of itself, entitle such
party to any other or further notice or demand in similar or other
circumstances.
The parties acknowledge that a substantial portion of negotiations,
anticipated performance and execution of this Agreement occurred or shall occur
in Palm Beach County, Florida, and that, therefore, without limiting the
jurisdiction or venue of any other federal or state courts, each of the parties
irrevocably and unconditionally (a) agrees that any suit, action or legal
proceeding arising out of or relating to this Agreement may be brought in the
courts of record of the State of Florida in Palm Beach County or the District
Court of the United States, Southern District of Florida; (b) consents to the
jurisdiction of each such court in any suit, action or proceeding; (c) waives
any objection which it may have to the laying of venue of any such suit, action,
or proceeding in any of such courts; and (d) agrees that service of any court
paper may be effected on such party by mail, as provided in this Agreement, or
in such other manner as may be provided under applicable laws or court rules in
said state. Except as otherwise expressly provided herein, no remedy herein
conferred upon any party is intended to be exclusive of any other remedy, and
each and every such remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute or otherwise. No single or partial exercise by any party of any
right, power or remedy hereunder shall preclude any other or further exercise
thereof. This Agreement and all transactions contemplated by this Agreement
shall be governed by, and construed and enforced in accordance with, the
internal laws of the State of Florida without regard to principles of conflicts
of laws. This Agreement shall not be construed more strongly against any party
regardless of who is responsible for its preparation. The parties acknowledge
each contributed and is equally responsible for its preparation. Any time period
provided for herein which shall end on a Saturday, Sunday, or legal holiday
shall extent to 5:00 p.m. of the next full business day. This Agreement
represents the entire understanding and agreement among the parties with respect
to the subject matter hereof, and supersedes all other negotiations,
understandings and representations (if any) made by and among such parties.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXX TECHNOLOGIES:
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------------
Xxxx Xxxxxxxxxx
Director
Date: September 20, 2002
XXXXX X. XXXXXX:
/s/ Xxxxx Xxxxxx
-----------------------------------------
Date: September 20, 2002
