EXHIBIT 10.6
EMPLOYMENT AGREEMENT
This Employment Agreement (this "AGREEMENT") is made as of February 1,
1998 by CYNET, INC., a Texas corporation (the "EMPLOYER"), and XXXXXXX X. XXXXX,
XX., an individual resident of the State of Texas (the "EXECUTIVE").
INTRODUCTION
Employer, directly or through one or more subsidiaries, is engaged in the
business of providing enhanced fax and related communication services. The
Employer desires to employ the Executive, and the Executive wishes to accept
such employment, upon the terms and conditions set forth in this Agreement.
The parties, intending to be legally bound, agree as follows:
Section 1. DEFINITIONS. For the purposes of this Agreement, the following
terms have the meanings specified or referred to in this Section 1.
1.1 "AFFILIATE" or "AFFILIATES" -- any Person that, directly or
indirectly, controls, or is controlled by or under common control with, the
Employer, including the Employer. For the purposes of this definition, "CONTROL"
(including the terms "CONTROLLED BY" and "UNDER COMMON CONTROL WITH") means the
power to direct or cause the direction of the management and policies of any
Person, directly or indirectly, through ownership of voting securities, by
contract, or otherwise.
1.2 "AGREEMENT" -- this Employment Agreement, as amended from time to
time.
1.3 "BASIC COMPENSATION" -- Salary and Benefits.
1.4 "BENEFITS" -- as defined in Section 3.1(c).
1.5 "BOARD OF DIRECTORS" -- the board of directors of the Employer.
1.6 "CONFIDENTIAL INFORMATION" -- any and all:
(a) trade secrets concerning the business and affairs of Employer
or any Affiliate, product specifications, data, know-how,
formulae, compositions, processes, designs, sketches,
photographs, graphs, drawings, samples, inventions and ideas,
past, current, and planned research and development, current
and planned manufacturing or distribution methods and
processes, customer lists, current and anticipated customer
requirements, price lists, market studies, business plans,
data bases, computer software and programs (including object
code and source code), computer software and database
technologies,
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systems, structures, and architectures (and related formulae,
compositions, processes, improvements, devices, know-how,
inventions, discoveries, concepts, ideas, designs, methods and
information), and any other information, however documented,
that is a trade secret within the meaning of the common law of
the State of Texas; and
(b) information concerning the business and affairs of Employer or
any Affiliate (which includes historical financial statements,
financial projections and budgets, historical and projected
sales, marketing and customer data, capital spending budgets,
acquisition prospects and plans, the names and backgrounds of
key personnel, personnel training and techniques and
materials), however documented; and
(c) notes, analysis, compilations, studies, summaries, and other
material prepared by or for any Affiliate containing or based,
in whole or in part, on any information included in the
foregoing.
1.7 "DISABILITY" -- as defined in Section 5.2.
1.8 "EFFECTIVE DATE" -- the date stated in the first paragraph of the
Agreement.
1.9 "EMPLOYEE INVENTION" -- any idea, invention, technique, modification,
process, or improvement (whether patentable or not), any industrial design
(whether registerable or not), any mask work, however fixed or encoded, that is
suitable to be fixed, embedded or programmed in a semiconductor product (whether
recordable or not), and any work of authorship (whether or not copyright
protection may be obtained for it) created, conceived, or developed by the
Executive, either solely or in conjunction with others, during the Employment
Period, or a period that includes a portion of the Employment Period, that
relates in any way to, or is useful in any manner in, the business then being
conducted or proposed to be conducted by the Employer or the Affiliates, and any
such item created by the Executive, either solely or in conjunction with others,
following termination of the Executive's employment with the Employer, that is
based upon or uses Confidential Information.
1.10 "EMPLOYMENT PERIOD" -- the term of the Executive's employment under
this Agreement.
1.11 "FISCAL YEAR" -- the Employer's fiscal year, as it exists on the
Effective Date or as changed from time to time.
1.12 "FOR CAUSE" -- as defined in Section 5.3.
1.13 "INCENTIVE COMPENSATION" -- as defined in Section 3.2.
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1.14 "OPTION PLAN" -- the CyNet, Inc. Stock Incentive Option Plan.
1.15 "NONINCENTIVE COMPENSATION" -- as defined in Section 3.3.
1.16 "PERSON" -- any individual, general or limited partnership, joint
venture, corporation (including any non-profit corporation), limited liability
company, bank, estate, trust, association, entity, unincorporated organization,
or government body.
1.17 "POST-EMPLOYMENT PERIOD" -- as defined in Section 7.2.
1.18 "PROPRIETARY ITEMS" -- as defined in Section 6.2(a)(iv).
1.19 "SALARY" -- as defined in Section 3.1(a).
1.20 "SIGNING BONUS" -- as defined in Section 3.1(b).
Section 2. EMPLOYMENT TERMS AND DUTIES.
2.1 EMPLOYMENT. The Employer hereby employs the Executive, and the
Executive hereby accepts employment by the Employer, upon the terms and
conditions set forth in this Agreement.
2.2 TERM. Subject to the provisions of Section 5, the term of the
Executive's employment under this Agreement will be five (5) years, beginning on
the Effective Date and ending on the fifth anniversary of the Effective Date.
Thereafter, the term may continue for additional one (1) year periods upon the
mutual written agreement of the Executive and the Employer.
2.3 DUTIES. The Executive will have such duties as are assigned or
delegated to the Executive by the Board of Directors (which duties shall be of a
senior management or executive level) and will initially serve as Chairman of
the Board of Directors and Chief Executive Officer of the Employer, with overall
responsibility for Employer's operations. The Executive will devote
substantially all of his entire business time, attention, skill, and energy
exclusively to the business of the Employer, will use his best efforts to
promote the success of the Employer's business, and will cooperate fully with
the Board of Directors in the advancement of the best interests of the Employer.
Notwithstanding the foregoing, Executive shall be entitled to devote a
reasonable amount of time to personal investments, including the investments of
Bull & Bear Enterprises, LLC, CyNet Holdings, L.L.C. and its affiliates. For the
Executive's service as a director of the Employer or as a director or officer of
any of its Affiliates, the Executive will fulfill his duties as such director or
officer without additional compensation.
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Section 3. COMPENSATION.
3.1 BASIC COMPENSATION.
(a) SALARY. The Executive will be paid an annual salary of
$180,000.00, subject to adjustment as provided below (the
"SALARY"), which will be payable in equal periodic
installments according to the Employer's customary payroll
practices, but no less frequently than monthly. The Salary
will be reviewed by the Board of Directors not less frequently
than annually, and may be adjusted upward or downward in the
sole discretion of the Board of Directors, but in no event
will the Salary be less than $180,000.00 per year.
(b) SIGNING BONUS. In order to induce the Executive to accept
employment with the Employer, the Employer agrees to pay the
Executive a bonus of $30,000.00 ("SIGNING BONUS"). Subject to
the Executive's employment by the Employer, such bonus shall
be paid to the Executive on the date he commences employment
hereunder unless Executive, at his sole discretion, grants
Employer an extension of time to pay the Signing Bonus.
(c) BENEFITS. The Executive will, during the Employment Period, be
permitted to participate in such pension, profit sharing,
bonus, life insurance, hospitalization, major medical, and
other employee benefit plans of the Employer that may be in
effect from time to time, to the extent the Executive is
eligible under the terms of those plans (collectively, the
"BENEFITS").
(d) LIFE INSURANCE. During the Employment Period, Employer, at the
Employer's expense, will purchase and maintain in effect one
or more life insurance policies on the life of Executive with
minimum coverage of $500,000. Such insurance shall include a
cash surrender value component and, upon Executive's death,
shall be payable to the beneficiary or beneficiaries
designated by Executive.
3.2 INCENTIVE COMPENSATION. As additional compensation (the "INCENTIVE
COMPENSATION") for the services to be rendered by the Executive pursuant to this
Agreement, the Executive will be entitled to receive such Incentive Compensation
as may be determined by the Board of Directors.
3.3 NONINCENTIVE COMPENSATION. As additional compensation (the
"NONINCENTIVE COMPENSATION") for the services to be rendered by the Executive
pursuant to this Agreement, the Executive shall be granted an incentive stock
option to purchase 100,000 shares of Class A Common Stock, at an exercise price
of $.39 per share, under the Option Plan.
3.4 VACATIONS AND HOLIDAYS. The Executive will be entitled to paid
vacation each Fiscal Year in accordance with the vacation policies of the
Employer in effect for its executive officers from
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time to time. Vacation must be taken by the Executive at such time or times as
approved by the Chairman of the Board of Directors. The Executive will also be
entitled to the paid holidays and other paid leave set forth in the Employer's
policies. Vacation days and holidays during any Fiscal Year that are not used by
the Executive during such Fiscal Year may not be used in any subsequent Fiscal
Year, but Executive shall be paid at the end of each Fiscal Year for any
vacation days which Executive was unable to use as a result of a request for
approval of a vacation having been denied by the Chairman of the Board of
Directors.
3.5 AUTOMOBILE. During the Employment Period, the Executive shall be
entitled to a monthly automobile allowance of $600.00. The Employer will
reimburse the Executive for reasonable expenses incurred by the Executive for
the operation, repair and maintenance of such automobile in the performance of
the Executive's duties pursuant to this Agreement, in accordance with the
Employer's employment policies, at a rate of $.35 per mile. The Executive shall
file expense reports with respect to such expenses in accordance with the
Employer's policies.
Section 4. FACILITIES AND EXPENSES. The Employer will furnish the
Executive office space, equipment, supplies, and such other facilities and
personnel as the Employer deems necessary or appropriate for the performance of
the Executive's duties under this Agreement and as are commensurate with
Executive's duties under Section 2.3. The Employer will pay the Executive's dues
in such professional societies and organizations as the Chairman of the Board of
Directors of the Employer deems appropriate, and will pay on behalf of the
Executive (or reimburse the Executive for) reasonable expenses incurred by the
Executive at the request of, or on behalf of, the Employer in the performance of
the Executive's duties pursuant to this Agreement, and in accordance with the
Employer's employment policies, including reasonable expenses incurred by the
Executive in attending conventions, seminars, and other business meetings, in
appropriate business entertainment activities, and for promotional expenses. The
Executive must file expense reports with respect to such expenses in accordance
with the Employer's policies.
Section 5. TERMINATION.
5.1 EVENTS OF TERMINATION. The Employment Period, the Executive's Basic
Compensation, Incentive Compensation, Nonincentive Compensation, and any and all
other rights of the Executive under this Agreement or otherwise as an employee
of the Employer will terminate (except as otherwise provided in this Section 5):
(a) upon the death of the Executive;
(b) upon the Disability of the Executive (as defined in Section
5.2) immediately upon notice from either party to the other;
(c) For Cause (as defined in Section 5.3), immediately upon notice
from the Employer to the Executive, or at such later time as
such notice may specify; or
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(d) upon Executive's voluntary termination of employment, which
termination shall be effective thirty (30) days after
Employer's receipt of Executive's written resignation.
5.2 DISABILITY. For purposes of this Section 5, the Executive will be
deemed to have a "DISABILITY" if, for physical or mental reasons, the Executive
is unable to perform the Executive's duties under this Agreement for 120
consecutive days, or 180 days during any twelve month period, as determined in
accordance with this Section 5.2. The Disability of the Executive will be
determined by a medical doctor selected by written agreement of the Employer and
the Executive upon the request of either party by notice to the other. If the
Employer and the Executive cannot agree on the selection of a medical doctor,
each of them will select a medical doctor and the two medical doctors will
select a third medical doctor who will determine whether the Executive has a
Disability. The determination of the medical doctor selected under this Section
5.2 will be binding on both parties. The Executive must submit to a reasonable
number of examinations by the medical doctor making the determination of
Disability under this Section 5.2, and the Executive hereby authorizes the
disclosure and release to the Employer of such determination and all supporting
medical records. If the Executive is not legally competent, the Executive's
legal guardian or duly authorized attorney-in-fact will act on behalf of the
Executive, under this Section 5.2, for the purposes of submitting the Executive
to the examinations, and providing the authorization of disclosure, required
under this Section 5.2.
5.3 FOR CAUSE. For purposes of Section 5.1, the phrase "FOR CAUSE" means:
(a) the Executive's breach of a material provisions of this Agreement, which
breach is not substantially cured within thirty (30) days after receipt of
written notice thereof from Employer; (b) the Executive's repeated failure to
adhere to any written Employer policy and Executive's failure to cure such
noncompliance within thirty (30) days after receipt of written notice thereof
from Employer; (c) the appropriation (or attempted appropriation) of a material
business opportunity of the Employer, including attempting to secure or securing
any personal profit in connection with any transaction entered into on behalf of
the Employer; (d) the misappropriation (or attempted misappropriation) of any of
the Employer's funds or property; or (e) the conviction of, the indictment for
(or its procedural equivalent), or the entering of a guilty plea or plea of no
contest with respect to, a felony or the equivalent thereof.
5.4 TERMINATION PAY. Effective upon the termination of this Agreement, the
Employer will be obligated to pay the Executive (or, in the event of his death,
his designated beneficiary as defined below) only such compensation as is
provided in this Section 5.4, and in lieu of all other amounts and in settlement
and complete release of all claims the Executive may have against the Employer
under this Agreement. For purposes of this Section 5.4, the Executive's
designated beneficiary will be such individual beneficiary or trust, located at
such address, as the Executive may designate by notice to the Employer from time
to time or, if the Executive fails to give notice to the Employer of such a
beneficiary, the Executive's estate. Notwithstanding the preceding sentence, the
Employer will have no duty, in any circumstances, to attempt to open an estate
on behalf of the Executive, to determine whether any beneficiary designated by
the Executive is alive or to ascertain the address of any such
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beneficiary, to determine the existence of any trust, to determine whether any
person or entity purporting to act as the Executive's personal representative
(or the trustee of a trust established by the Executive) is duly authorized to
act in that capacity, or to locate or attempt to locate any beneficiary,
personal representative, or trustee.
(a) TERMINATION BY THE EMPLOYER FOR CAUSE. If the Employer
terminates this Agreement For Cause, the Executive will be
entitled to receive his Salary and Benefits through the date
such termination is effective and the vested portion of any
Incentive Compensation and any Nonincentive Compensation.
(b) TERMINATION UPON DISABILITY. If this Agreement is terminated
by either party as a result of the Executive's Disability, as
determined under Section 5.2, the Employer will pay the
Executive his Salary and Benefits through the remainder of the
calendar month during which such termination is effective and
for the lesser of (i) six consecutive months thereafter, or
(ii) the period until Disability insurance benefits commence
under the Disability insurance coverage, if any, furnished by
the Employer to the Executive. The Executive shall be entitled
to the vested portions of his Incentive Compensation and
Nonincentive Compensation and to a pro rata portion of his
Incentive Compensation and Nonincentive Compensation for the
year during which such Disability occurs, but shall not be
entitled to any other Incentive Compensation or Nonincentive
Compensation. Executive shall be entitled to continue to
participate in Employer's group health insurance (if such
participation is permitted by the insurance company providing
such insurance coverage) after Disability occurs, provided
Executive reimburses Employer for the costs of such coverage.
Executive shall also be entitled to acquire from Employer any
life insurance policy in effect on Executive's life at the
date of Disability, provided Executive reimburses Employer the
cash surrender value, if any, accumulated in such life
insurance policy and assumes the obligation to make payments
to maintain such insurance policy in effect.
(c) TERMINATION UPON DEATH. If this Agreement is terminated
because of the Executive's death, the Executive will be
entitled to receive his Salary and Benefits through the end of
the calendar month in which his death occurs. The Executive
shall be entitled to receive the vested portions of his
Incentive Compensation and Nonincentive Compensation and to a
pro rata portion of his Incentive Compensation and
Nonincentive Compensation for the year during which the
Executive's death occurs, but shall not be entitled to any
other Incentive Compensation or Nonincentive Compensation for
or any subsequent year. Executive's family shall be entitled
to continue to participate in Employer's group health
insurance (if such participation is permitted by the insurance
company providing such insurance coverage) after Executive's
death
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occurs, provided Executive's family reimburses Employer for
the costs of such coverage.
(d) TERMINATION UPON RESIGNATION. If this Agreement is terminated
because of the voluntary resignation of the Executive
hereunder, the Executive shall be entitled to receive his
Salary and Benefits through the effective date of his
termination and any vested portions of his Incentive
Compensation or Nonincentive Compensation. The Executive shall
not be entitled to any other Incentive Compensation or to any
other Nonincentive Compensation.
(e) TERMINATION BY THE EMPLOYER NOT FOR CAUSE. If the Employer
terminates this Agreement not For Cause, the Executive, at the
option of the Executive, will be entitled to either: (i)
receive all of the compensation and Benefits provided by
Section 3.1, and the Incentive Compensation provided by
Section 3.2 and the Nonincentive Compensation provided by
Section 3.3 for the remainder of the Employment Term, and the
Executive shall be subject to the provisions of Section 7.2
hereof; or (ii) the Executive shall be entitled to receive all
of the compensation and Benefits provided by Section 3.1 and
the vested portions of any Incentive Compensation provided by
Section 3.2 and Nonincentive Compensation provided by Section
3.3 through the end of the calendar month in which such
termination occurs, and the Executive shall not be subject to
the provisions of Section 7.2.
(f) BENEFITS. The Executive's accrual of, or participation in
plans providing for, the Benefits will cease at the effective
date of the termination of this Agreement, and the Executive
will be entitled to accrued Benefits pursuant to such plans
only as provided in such plans. The Executive will not
receive, as part of his termination pay pursuant to this
Section 5, any payment or other compensation for any vacation,
holiday, sick leave, or other leave unused on the date the
notice of termination is given under this Agreement.
(g) EXPIRATION OF EMPLOYMENT. Employer agrees to notify the
Executive not less than sixty (60) days prior to the
expiration of the initial term of this Agreement or any
subsequent continuation thereof as to whether Employer desires
to extend the Employment Period of this Agreement.
5.5 TERMINATION UPON BREACH BY EMPLOYER. This Agreement may be terminated
by Executive, by written notice to Employer, in the event of the Employer's
breach of a material provision of this Agreement, which breach is not
substantially cured within thirty (30) days after Employer's receipt of written
notice thereof from Executive. If this Agreement is terminated by Executive as a
result of Employer's breach, Executive shall not be subject to the provisions of
Section 7.2 hereof.
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5.6 TERMINATION UPON CHANGE OF CONTROL. Notwithstanding any other
provision of this Agreement, the Executive's employment under this Agreement may
be terminated during the Employment Period by the Executive if a "Change of
Control" (as defined below) of the Employer occurs without the consent of the
Executive. If Executive elects to terminate his employment as a result of a
Change of Control, Executive will be entitled to receive his salary and benefits
and the vested portions of his Incentive Compensation and Nonincentive
Compensation for a period of three (3) years after the effective date of such
termination. For purposes of this Agreement, a "Change of Control" of Employer
shall be deemed to have occurred if, after the Effective Date (a) any "person"
(as such term is defined in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Employer representing 50% or more of the
combined voting power of Employer's then outstanding securities, without the
prior approval of at least a majority of the members of the Board in office
immediately prior to such person obtaining such percentage interest; (b) there
occurs a proxy contest or a consent solicitation, or Employer is a party to a
merger, consolidation, sale of assets, plan of liquidation or other
reorganization not approved by at least a majority of the members of the Board,
as a consequence of which members of the Board in office immediately prior to
such transaction or event constitute less than a majority of the Board
thereafter; or (c) during any period of two consecutive years, other than as a
result of an event described in clause (b) of this Section 5.6, individuals who
at the beginning of such period constituted the Board (including for this
purpose any new director whose election was approved by a vote of at least a
majority of the directors then in office who were directors at the beginning of
such period) cease for any reason to constitute at least a majority of the
members of the Board.
Section 6. NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS.
6.1 ACKNOWLEDGMENTS BY THE EXECUTIVE. The Executive acknowledges that
during the Employment Period and as a part of his employment, the Executive will
be afforded access to Confidential Information; public disclosure of such
Confidential Information could have an adverse effect on the Employer and its
business; because the Executive possesses substantial technical expertise and
skill with respect to the Employer's business, the Employer desires to obtain
exclusive ownership of each Employee Invention, and the Employer will be at a
substantial competitive disadvantage if it fails to acquire exclusive ownership
of each Employee Invention; and the provisions of this Section 6 are reasonable
and necessary to prevent the improper use or disclosure of Confidential
Information and to provide the Employer with exclusive ownership of all Employee
Inventions.
6.2 AGREEMENTS OF THE EXECUTIVE. In consideration of the compensation and
benefits to be paid or provided to the Executive by the Employer under this
Agreement, the Executive covenants as follows:
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(a) CONFIDENTIALITY.
(i) During and for a period of two (2) years following the
Employment Period, the Executive will hold in confidence
the Confidential Information and will not disclose it to
any person except with the specific prior written
consent of the Employer or except as otherwise expressly
permitted by the terms of this Agreement.
(ii) Any trade secrets of any Affiliate will be entitled to
all of the protections and benefits under the common law
of the State of Texas and any other applicable law. If
any information that the Employer deems to be a trade
secret is found by a court of competent jurisdiction not
to be a trade secret for purposes of this Agreement,
such information will, nevertheless, be considered
Confidential Information for purposes of this Agreement.
The Executive hereby waives any requirement that the
Employer submit proof of the economic value of any trade
secret or post a bond or other security.
(iii) None of the foregoing obligations and restrictions
applies to any part of the Confidential Information that
the Executive demonstrates either (x) was known by
Executive prior to the date of his employment by the
Employer, (y) was or became generally available to the
public other than as a result of a disclosure by the
Executive, or (z) was made known to Executive on a
nonconfidential basis from a source other than Employer
or its representatives or agents, provided that such
source is not bound by a confidentiality agreement with,
or other obligation of secrecy to, Employer or another
party.
(iv) The Executive will not remove from the premises of the
Employer or any Affiliate (except to the extent such
removal is for purposes of the performance of the
Executive's duties at home or while traveling, or except
as otherwise specifically authorized by the Employer or
such Affiliate) any document, record, notebook, plan,
model, component, device, or computer software or code,
whether embodied in a disk or in any other form
(collectively, the "PROPRIETARY ITEMS"). The Executive
recognizes that, as between the Employer or any
Affiliate and the Executive, all of the Proprietary
Items, whether or not developed by the Executive, are
the exclusive property of the Employer or the
Affiliates. Upon termination of this Agreement by either
party, or upon the request of the Employer or any
Affiliate during the Employment Period, the Executive
will return to the Employer or the Affiliates all of the
Proprietary Items in the Executive's possession or
subject to the Executive's control, and the
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Executive shall not retain any copies, abstracts,
sketches, or other physical embodiment of any of the
Proprietary Items.
(b) EMPLOYEE INVENTIONS. Each Employee Invention will belong
exclusively to the Employer. The Executive acknowledges that
all of the Executive's writing, works of authorship, specially
commissioned works, and other Employee Inventions are works
made for hire and the property of the Employer, including any
copyrights, patents, or other intellectual property rights
pertaining thereto. If it is determined that any such works
are not works made for hire, the Executive hereby assigns to
the Employer all of the Executive's right, title, and
interest, including all rights of copyright, patent, and other
intellectual property rights, to or in such Employee
Inventions. The Executive covenants that he will promptly:
(i) disclose to the Employer in writing any Employee
Invention;
(ii) assign to the Employer or to a party designated by
the Employer, at the Employer's request and
without additional compensation, all of the
Executive's right to the Employee Invention for
the United States and all foreign jurisdictions;
(iii) execute and deliver to the Employer such
applications, assignments, and other documents as
the Employer may request in order to apply for and
obtain patents or other registrations with respect
to any Employee Invention in the United States and
any foreign jurisdictions;
(iv) sign all other papers necessary to carry out the
above obligations; and
(v) give testimony and render any other assistance in
support of the Employer's rights to any Employee
Invention.
6.3 DISPUTES OR CONTROVERSIES. The Executive recognizes that should a
dispute or controversy arising from or relating to this Agreement be submitted
for adjudication to any court, arbitration panel, or other third party, the
preservation of the secrecy of Confidential Information may be jeopardized. All
pleadings, documents, testimony, and records relating to any such adjudication
will be maintained in secrecy and will be available for inspection by the
Employer, the Executive, and their respective attorneys and experts, who will
agree, in advance and in writing, to receive and maintain all such information
in secrecy, except as may be limited by them in writing.
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Section 7. NON-COMPETITION AND NON-INTERFERENCE.
7.1 ACKNOWLEDGMENTS BY THE EXECUTIVE. The Executive acknowledges and
agrees that the limitations set forth in this Section 7 are a necessary part of
and ancillary to the Executive's agreement not to disclose Confidential
Information, reasonable and do not impose a greater restraint on the activities
of the Executive than is necessary to protect the business interest of the
Employer. In the event that any such territorial, scope, or time limitation are
deemed to be unreasonable by a court of competent jurisdiction, the Executive
agrees to the reduction of the territorial, scope or time limitation to the
area, scope or time which such court shall have deemed reasonable.
7.2 COVENANTS OF THE EXECUTIVE. In consideration of the acknowledgments by
the Executive, and in consideration of the compensation and benefits to be paid
or provided to the Executive by the Employer in the event this Agreement is
terminated pursuant to Section 5.4(a), 5.4(d) or 5.4(e), the Executive covenants
that he will not, directly or indirectly:
(a) during the Employment Period, except in the course of his
employment hereunder, and during the Post-Employment Period
(as defined below), engage or invest in, own, manage, operate,
finance, control, or participate in the ownership, management,
operation, financing, or control of, be employed by,
associated with, or in any manner connected with, lend the
Executive's name or any similar name to, lend Executive's
credit to or render services or advice to, any business whose
products or activities compete in whole or in part with the
products or activities of the Employer or any Affiliate of
Employer anywhere within the geographic areas in which the
Employer or any such Affiliate now or hereafter conducts its
business; provided, however, that the Executive may purchase
or otherwise acquire up to (but not more than) one percent of
any class of securities of any enterprise (but without
otherwise participating in the activities of such enterprise)
if such securities are listed on any national or regional
securities exchange or have been registered under Section
12(g) of the Securities Exchange Act of 1934;
(b) whether for the Executive's own account or for the account of
any other person, at any time during the Employment Period and
the Post-Employment Period, solicit business of the same or
similar type being carried on by the Employer or any Affiliate
of Employer, from any person known by the Executive to be a
customer of the Employer or any such Affiliate, whether or not
the Executive had personal contact with such person during and
by reason of the Executive's employment with the Employer;
(c) whether for the Executive's own account or the account of any
other person at any time during the Employment Period and the
Post-Employment Period, (i) solicit, employ, or otherwise
engage as an employee, independent contractor, or otherwise,
any person who is or was an employee of the
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Employer or any Affiliate of Employer at any time during the
Employment Period or in any manner induce or attempt to induce
any employee of the Employer and any such Affiliate to
terminate his employment with the Employer; or (ii) interfere
with the Employer's or any Affiliate's relationship with any
person, including any person who at any time during the
Employment Period was an employee, contractor, supplier, or
customer of the Employer or any such Affiliate; or
(d) at any time during or after the Employment Period, disparage
the Employer or any of its shareholders, directors, officers,
employees, or agents.
For purposes of this Section 7.2, the term "POST-EMPLOYMENT PERIOD" means
the two-year period beginning on the date of termination of the Executive's
employment with the Employer.
If any covenant in this Section 7.2 is held to be unreasonable, arbitrary,
or against public policy, such covenant will be considered to be divisible with
respect to scope, time, and geographic area, and such lesser scope, time, or
geographic area, or all of them, as a court of competent jurisdiction may
determine to be reasonable, not arbitrary, and not against public policy, will
be effective, binding, and enforceable against the Executive.
The Executive will, while the covenant under this Section 7.2 is in
effect, give notice to the Employer, within ten days after accepting any other
employment, of the identity of the Executive's new employer. The Employer may
notify such new employer that the Executive is bound by this Agreement.
Notwithstanding the foregoing to the contrary, the Executive will not be
subject to any covenant under this Section 7.2 in the event:
(i) the term of the Executive's employment under this Agreement is not
renewed pursuant to Section 2.2; or
(ii) Employer voluntarily files a bankruptcy or insolvency proceeding (or
an involuntary bankruptcy or insolvency proceeding is filed against
Employer, which proceeding has not been dismissed within ninety (90)
days from the filing thereof).
Section 8. GENERAL PROVISIONS.
8.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY. The Executive acknowledges
that the injury that would be suffered by the Employer as a result of a breach
of the provisions of this Agreement (including any provision of Sections 6 and
7) would be irreparable and that an award of monetary damages to the Employer
for such a breach would be an inadequate remedy. Consequently, the Employer will
have the right, in addition to any other rights it may have, to obtain
injunctive relief to restrain any breach or threatened breach or otherwise to
specifically enforce any provision of this
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Agreement, and the Employer will not be obligated to post bond or other security
in seeking such relief. Any such remedy shall be in addition to any damages
which the Employer may be legally entitled to recover as a result of any breach
by the Employee of any provision of this Agreement. The Employer may pursue any
of the remedies described in this Section 8 concurrently or consecutively and in
any order as to such breach or violation, and the pursuit of any one of such
remedies at any time will not be deemed an election of remedies or a waiver of
the right to pursue any other available remedy.
8.2 ESSENTIAL AND INDEPENDENT COVENANTS. The covenants by the Executive in
Sections 6 and 7 are essential elements of this Agreement supported by the
payment of $10.00 and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Executive, and without the
Executive's agreement to comply with such covenants, the Employer would not have
entered into this Agreement or employed or continued the employment of the
Executive. The Employer and the Executive have independently consulted their
respective counsel and have been advised in all respects concerning the
reasonableness and propriety of such covenants, with specific regard to the
nature of the business conducted by the Employer.
8.3 REPRESENTATIONS AND WARRANTIES BY THE EXECUTIVE. The Executive
represents and warrants to the Employer that the execution and delivery by the
Executive of this Agreement do not, and the performance by the Executive of the
Executive's obligations hereunder will not, with or without the giving of notice
or the passage of time, or both: violate any judgment, writ, injunction, or
order of any court, arbitrator, or governmental agency applicable to the
Executive; or conflict with, result in the breach of any provisions of or the
termination of, or constitute a default under, any agreement to which the
Executive is a party or by which the Executive is or may be bound. The Executive
further represents and warrants to the Employer that no agreements or
understandings, whether written or oral, are currently in force and effect
between the Executive and the Employer, or any other Person concerning the
subject matter of this Agreement.
8.4 OBLIGATIONS CONTINGENT ON PERFORMANCE. The obligations of the Employer
hereunder, including its obligation to pay the compensation provided for herein,
are contingent upon the Executive's performance of the Executive's obligations
hereunder.
8.5 WAIVER. The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by either
party in exercising any right, power, or privilege under this Agreement will
operate as a waiver of such right, power, or privilege, and no single or partial
exercise of any such right, power, or privilege will preclude any other or
further exercise of such right, power, or privilege or the exercise of any other
right, power, or privilege. To the maximum extent permitted by applicable law,
no claim or right arising out of this Agreement can be discharged by one party,
in whole or in part, by a waiver or renunciation of the claim or right unless in
writing signed by the other party; no waiver that may be given by a party will
be applicable except in the specific instance for which it is given; and no
notice to or demand on one party will be deemed to be a waiver of any obligation
of such party or of the right of the party giving such notice or demand to take
further action without notice or demand as provided in this Agreement.
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8.6 NOTICES. All notices pertaining to this Agreement must be in writing,
must be sent to the addressee at the address set forth in this Section, or at
such other address as the addressee has designated by a notice given in the
manner set forth in this Section, and must be sent by telegram, telex,
facsimile, electronic mail, courier, or prepaid, certified U.S. Mail. Notices
will be deemed given when received, if sent by telegram, telex, electronic mail
or facsimile and if received between the hours of 8:00 a.m. and 5:00 p.m., local
time of the destination address, on a business day (with confirmation of
completed transmission sufficing as prima facie evidence of receipt of a notice
sent by telex, telecopy, electronic mail, or facsimile), and when delivered and
receipted for (or when attempted delivery is refused at the address where sent)
if sent by courier or by certified U.S. Mail. Notices sent by telegram, telex,
electronic mail, or facsimile and received between 12:01 a.m. and 7:59 a.m.,
local time of the destination address, on a business day will be deemed given at
8:00 a.m. on that same day. Notices sent by telegram, telex, electronic mail, or
facsimile and received at a time other than between the hours of 12:01 a.m. and
5:00 p.m., local time of the destination address, on a business day will be
deemed given at 8:00 a.m. on the next following business day after the day of
receipt. The addresses for notice are as follows:
If to Employer: CyNet, Inc.
00000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
With a copy to: Chamberlain, Hrdlicka, White, Xxxxxxxx & Xxxxxx
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxx X. Spring, III
Facsimile No.: (000) 000-0000
and
If to the Executive: Xxxxxxx X. Xxxxx, Xx.
000 Xxxxxx'x Xxxxx Xxxx
Xxx Xxxxxxxxx, Xxxxx 00000
Facsimile No.: __________________
8.7 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED. This Agreement shall
inure to the benefit of, and shall be binding upon, the parties hereto and their
respective successors, assigns, heirs, and legal representatives, including any
entity with which the Employer may merge or consolidate or to which all or
substantially all of its assets may be transferred. The duties and covenants of
the Executive under this Agreement, being personal, may not be delegated.
8.8 INTERPRETATION. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law. A determination that any
15
provision of this Agreement is unenforceable or invalid shall not affect the
enforceability or validity of any other provision.
8.9 HEADINGS. The section headings appearing in this Agreement have been
inserted for convenience only and shall be given no substantive meaning or
significance whatever in construing the terms and provisions of this Agreement.
8.10 ENTIRE AGREEMENT. This Agreement constitutes the final and entire
agreement and understanding between the parties to this Agreement concerning the
subject matter of this Agreement, and this Agreement supersedes and replaces all
prior agreements and understandings, whether written or oral, between such
parties concerning the subject matter of this Agreement. No alleged
representation, warranty, promise, inducement, or statement of intention not
expressly set forth in this Agreement is binding on any party to this Agreement.
8.11 ACKNOWLEDGMENT AND RELEASE BY THE EXECUTIVE. By his execution of this
Agreement, the Executive acknowledges that this Agreement supersedes and
replaces all other agreements and understandings, whether written or oral,
between the Executive and any other Person concerning the subject matter of this
Agreement. In consideration for the rights and obligations arising under this
Agreement, the Executive hereby voluntarily, knowingly, fully, finally,
completely, and forever releases, relinquishes, and forever discharges the
Employer and its Affiliates, their officers, directors, employees, and agents,
from any and all claims, actions, demands, and causes of action of whatever kind
or character, whether known or unknown, joint or several, which the Executive
might have or might claim to have against the Employer for any and all injuries,
harm, damages, penalties, costs, losses, expenses, attorneys' fees, liabilities,
or other detriments, if any, whatsoever and whenever incurred, suffered, or
claimed by the Executive arising from any prior agreement or understanding,
whether written or oral, between the Executive and the Employer, or any other
Person concerning the subject matter of this Agreement.
8.12 GOVERNING LAW. This Agreement will be governed by the laws of the
State of Texas without regard to conflicts of laws principles.
8.13 JURISDICTION. Any action or proceeding seeking to enforce any
provision of, or based on any right arising out of, this Agreement may be
brought against either of the parties in the courts of the State of Texas,
County of Xxxxxx, or, if it has or can acquire jurisdiction, in the United
States District Court for the District of Texas, and each of the parties
consents to the jurisdiction of such courts (and of the appropriate appellate
courts) in any such action or proceeding and waives any objection to venue laid
therein. Process in any action or proceeding referred to in the preceding
sentence may be served on either party anywhere in the world.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EMPLOYER:
CYNET, INC.
BY: /s/XXXXXX X. XXXXX
XXXXXX X. XXXXX, VICE PRESIDENT
AND GENERAL COUNSEL
EXECUTIVE:
BY: /s/XXXXXXX X. XXXXX, XX.
XXXXXXX X. XXXXX, XX.
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