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EXHIBIT 10.27
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("this Agreement") is made and effective this
22nd day of July, 1998 by and between XXXXXX TECHNOLOGIES, INC., a Florida
corporation located at 000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx
00000 ("DTI" or "Employer"), and Xxxxx XxXxxxxxxxx residing at 00 XX 00xx,
Xxxxxxxxx Xxxxx, Xx. ("Employee").
WITNESSETH:
WHEREAS, DTI believes it is in DTI's best interest to employ Employee, and
Employee desires to be employed by DTI;
WHEREAS, DTI and Employee desire to set forth the terms and conditions on
which Employee shall be employed by and provide his services to DTI.
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto, intending to be legally bound, do hereby agree
as follows:
1. Employment. DTI hereby employs Employee in its business, and Employee
hereby accepts such employment, all upon the terms and conditions hereinafter
set forth.
2. Term. Unless sooner terminated pursuant to the provisions of this
Agreement, the term of employment under this Agreement shall be for as long as
Employee remains employed hereunder, with Employee acknowledging that he is an
at will employee. If an Employee decides to terminate his or her employment,
DTI recommends a minimum two (2) week notice. Whenever possible, Xxxxxx will
reciprocate with two (2) weeks notice for termination, but reserves the right to
waive this notice period at its own discretion.
3. Confidentiality & Non-Disclosure. Both during and after Employee's
employment they shall not disclose to anyone outside DTI any "Confidential &
Proprietary Information" and shall use such information only for DTI's business
purposes, and shall provide DTI with notice of any inadvertent disclosure of
such information. "Confidential & Proprietary Information" is defined as
information that has not been made publicly available by DTI or the third party
owner of such information. It includes Developments (defined in Section 5),
technical data, specifications, designs, concepts, discoveries, copyrights,
improvements, product plans, research and development, financial information,
customer lists, leads, and/or marketing programs.
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 that is subject to the copyrights of any third
party unless DTI has the right to copy and incorporate such copyrighted
material.
4. Surrender of Records. Upon the termination of the Employee's
employment, for any reason whatsoever, the Employee agrees to surrender to DTI,
in good condition, all records pertaining to DTI's business operations and
related to any work performed for DTI, all DTI property, and any and all third
party property, including all Confidential & Proprietary Information, drawings,
computer programs or copies thereof, documentation, notebooks and notes, reports
and any other materials on electronic or printed media. Included are any
documents or media containing the names, addresses, and other information
with regard to customers or potential customers of the DTI.
5. Invention Assignment. Employee hereby grants, transfers and assigns to
DTI all of his or her 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 or she
agrees that DTI may copyright said materials in DTI's name and secure renewal,
reissues and extensions of such copyrights for such periods 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 in the scope of
Employee's employment or
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engagement and solely or jointly by employee during Employee's employment
whether or not subject to patent, copyright or other forms of protection.
Employee acknowledges that the copyrights in Developments created by
Employee belong to DTI by operation of law, or may belong to a party engaged by
DTI by operation of law pursuant to a works for hire contract between DTI and
such contracted party. 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 5 are listed and described on the
attached "Schedule of Separate Works." Employee agrees not to include any party
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 promptly to disclose to DTI
all Developments, to execute separate written assignments to DTI at DTI's
request, and to assist DTI in obtaining patents or copyrights in the U.S. and in
other countries, 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 or her agent and attorney-in-fact to perform all
reasonable acts to obtain patents and/or copyrights related to Developments as
defined and 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 be 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 to DTI. Employee agrees to promptly
surrender such information and records at the request of DTI as to any
Developments.
6. Non-Solicitation. 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 one (1) year after, the
termination of Employee's employment or engagement with DTI.
7. Non-Competition Agreement. Employee shall not while employed by DTI,
and after the termination of said employment for the time period described in
the paragraph below as the "Non-Compete Period," directly or indirectly, as
owner, officer, director, employee or agent conduct or be related to any
business in direct competition with any business of DTI now, or any business
DTI may enter into during the Employee's period of employment. An exception
will be made in the cases of competitive businesses wherein Employee is not
working directly in a competitive capacity by virtue of their position or in a
competitive operating unit and said competitive products and services are less
than twenty-five (25%) of its total revenue.
In addition to, and not in limitation of the other provisions hereof
or of any other Agreement between Employee and DTI, 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 DTI or do or permit to be done anything
which may tend to take away or diminish the trade, business or good will of DTI
or give to any person the benefit or advantage of DTI's methods of operation,
advertising, publicity, training, business customers or accounts, or any other
information relating or useful to DTI's business.
The Non-Compete Period shall be dependent on the duration of
Employee's employment with DTI as follows:
1. If Employee has completed ninety (90) days or less of employment
with DTI there will be no Non-Compete Period;
2. If Employee has completed more than ninety (90) days of employment
with DTI the Non-Compete Period will be six (6) months.
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3. DTI may waive the Non-Compete period or any portion of it, at its sole
discretion.
The existence of any claim or cause of action by Employee against DTI
predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement by DTI of these covenants.
Employee acknowledges and confirms that the restrictions contained
herein are fair and reasonable and not the result of overreaching, duress, or
coercion of any kind.
8. Severance. In further consideration of the entering into of this
Agreement by Employee, DTI agrees to entitle Employee to a severance pay benefit
based upon base salary dependent upon the duration of Employee's employment with
DTI, determined as follows:
(1) If Employee has completed ninety (90) days or less of employment with
DTI there will be no severance benefit.
(2) If Employee has completed more than ninety (90) days of employment with
DTI the Employee shall be entitled to six (6) month's severance base
pay.
(3) If DTI waives the Non-Compete Period in its entirety or any portion of
it, there shall be no severance benefit paid for the period that is
waived.
The foregoing severance benefit shall be paid by Xxxxxx in accordance
with DTI's current payroll policies. Employee shall not be entitled to any
severance benefit if terminated by Xxxxxx for "cause" or if Employee voluntarily
resigns from his or her employment with Xxxxxx subject to the provisions of the
Non-Compete period in Section 7. As used in this Agreement determination for
"cause" shall be defined as termination of Employee by Xxxxxx in the event
Employee has been convicted of any felony or, in the case of other crimes,
involving moral turpitude or dishonesty, or for any breach by Employee of any
agreement with Xxxxxx or of its employment or business policies (including
without limitation theft or misuse of company property), or for any other act or
omission by Employee which does not fit into the previous categories but which
Xxxxxx in good faith believes has occurred to its detriment and about which
Employee has received at least one (1) written warning by Xxxxxx and despite
such prior written warning, Employee has a second occasion committed such act or
omission.
9. Conflict of Interest. Employee agrees to devote their primary efforts
to the service of DTI and the promotion of DTI's interests. Employee further
agrees never to enter into any relationship, and to immediately sever any
existing relationship, whether such relationship is one for monetary gain, or
not, that compromises Employee's ability to act in the best interests of DTI, or
detracts from Employee's ability to perform Employee's responsibilities and
obligations. In the event that the Employee obtains secondary employment,
Employee agrees to notify the Human Resources Department of DTI prior to
commencing said employment.
10. Entire Agreement & Termination. This Agreement represents the entire
understanding and agreement between the parties with respect to the subject
matter hereof, and supersedes all other negotiations, understandings and
representations (if any) made by and between such parties. The Employer may, in
its sole discretion, terminate this Agreement for any reason, subject to any
applicable severance obligation as set forth herein.
11. 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.
12. Jurisdiction and Venue. 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) agree 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 such 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.
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13. Employee Representations, Warranties and Acknowledgments. Employee
represents and warrants to DTI that he is fully empowered to enter and perform
his obligations under this Agreement and, without limitation, that he is under
No restrictive covenants to any person or entity that will be violated by his
entering into and performing this Agreement, and that this Agreement
constitutes the valid and legally binding obligation of Employee enforceable in
accordance with its terms. The execution and delivery of this Agreement by
Employee has been duly authorized by all necessary action. Employee shall
indemnify DTI upon demand for and against any and all judgments, leases,
claims, damages, costs (including without limitation all legal fees and costs,
even if incident to appeals) incurred or suffered by any of them as a result of
the breach of the representations and warranties made in this section, or as
a result of the failure of the acknowledgment made in this section to be true
and correct at all times.
14. 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.
15. Severability. If any part 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.
16. Survival. Notwithstanding anything to the contrary herein, the
provisions of this Agreement shall survive and remain in effect in accordance
with their respective terms in the event the employment is terminated.
17. Waivers. The failure or delay of DTI at any time to require
performance by Employee of any provision of this Agreement, even if known, shall
not affect the right of DTI to require performance of that provision or to
exercise any right, power or remedy hereunder, and any waiver by DTI 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 Employee in any case shall, of itself,
entitle such party to any other or further notice or demand in similar or other
circumstances.
18. Specific Performance. Employee acknowledges that the services to be
rendered by Employee hereunder are extraordinary and unique and are vital to
the success of DTI, and that damages at law would be an inadequate remedy for
any breach or threatened breach of this Agreement by Employee. Therefore, in
the event of a breach or threatened breach by Employee of any provision of this
Agreement, then DTI shall be entitled, in addition to all other rights or
remedies, to injunctions restraining such breach.
19. Remedies Cumulative. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
XXXXXX TECHNOLOGIES, INC.
By: /s/ X. Xxxxx Date: 6/22/98
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Printed Name: Xxxx Xxxxx
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EMPLOYEE: /s/ X. XxXxxxxxxxx Date: 6-22-98
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Printed Name: Xxxxx XxXxxxxxxxx
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FORM 003 1/1/98
SCHEDULE OF SEPARATE WORKS
The following are works that are not assigned by Section 5 of the
Employment Agreement, in which Employee has any right, title or interest, and
which were conceived or written either wholly or in part by Employee, prior to
or outside the scope of Employee's employment by DTI.
DESCRIPTION: (If none, enter the word "None")
None
Indicate any item listed above that has been published, registered as a
copyright, or is or has been the subject of a patent application:
Indicate the name of such organization or third party who also has rights in any
of the listed items (such as former employers, partners, etc.):
The foregoing is complete and accurate to the best of Employee's knowledge.
Employee's Signature: /s/ Xxxxx XxXxxxxxxxx Date: 6-22-98
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Employee's Printed Name: Xxxxx XxXxxxxxxxx
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CREDIT UNION: As a Xxxxxx employee you are eligible to join the
IBM Southeast Credit Union.
ATHLETIC CLUB DISCOUNT: At the Boca Raton Athletic Club
This letter is provided for purposes of providing compensation and benefit
information only. The employment relationship is governed by the Employment
Agreement that you will be asked to sign.
Once again, I would like to personally welcome you to Xxxxxx Technologies. We
look forward to having you as a member of our team. We firmly believe that this
will be a mutually rewarding relationship.
Very truly yours, Accepted:
X. XxXxxxxxxxx 6/1/98
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Employee Signature & Date
Xxxx Xxxxx
Director of Human Resources
Xxxxx XxXxxxxxxxx
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Employee Name
