Exhibit 10.12
EMPLOYMENT AGREEMENT
Employment Agreement, dated as of January 1, 1999, by and between
3542491 Canada Inc. operating as Xxxxxxxxxxx.xxx Canada, a Canada corporation
with offices at c/x Xxxxx, White & Xxxxxxxx, 0000 X. Xxxxxxx Xxxxxx, Xxxxx 0000,
X.X. Xxx 00000, Xxxxx Xxxxxx, Xxxxxxxxx, X.X. X0X 0X0, (the "Corporation"), and
Xxxxx X. Xxxxxx, an individual residing at 0 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxx (the "Executive").
W I T N E S S E T H:
In consideration of the mutual covenants herein contained and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties hereto, the parties hereto hereby agree as follows:
1. Employment. The Corporation hereby agrees to employ the Executive
in an executive capacity, and the Executive hereby accepts and agrees to such
employment, commencing as of the date hereof, upon the terms and conditions
hereinafter set forth.
2. Term. The term of the Executive's employment under this Agreement
shall commence as of the date hereof and shall continue until the close of
business on December 31, 2001, and shall automatically be renewed for twelve
(12) month periods thereafter unless either party gives the other written notice
of termination at least three (3) months prior to the expiration of the initial
or any renewal term, unless sooner terminated as provided elsewhere in this
Agreement (the "Term").
3. Duties and Services. The Executive agrees to serve the
Corporation as Vice President, Administration of the Corporation and shall also
serve such of its subsidiaries and affiliated companies as may be designated by
the Corporation, faithfully, diligently and to the best of his ability, subject
to and under the direction and control of the President and Board of Directors
of the Corporation, devoting his entire business time, energy and skill to such
employment, and to perform from time to time such executive services, advisory
or otherwise, as the President and Board of Directors shall request, and to act
in such capacities or other offices for the Corporation and for any of its
subsidiary or affiliated companies as the President and Board of Directors shall
request without further compensation other than that for which provision is made
in this Agreement. The Executive acknowledges that while there are no strict
guidelines pertaining to work hours, he shall be expected to work a longer than
average week, and spend the necessary time and effort to consistently deliver
high quality results in a time sensitive manner. The Executive acknowledges that
his position with the Corporation will require significant business trips, much
of which will involve travel during off-peak and non-business hours..
4. Compensation. (a) Salary. The Corporation agrees to pay to the
Executive, and the Executive agrees to accept, a basic salary for all his
services (the "Salary")
at the rate of $154,200 CDN per annum, payable in accordance with the
Corporation's standard payroll policies from time to time.
(b) Stock Options. Executive shall be eligible to participate
in the 1996 Stock Option Plan of Xxxxxxxxxxx.xxx, Inc., the parent of the
Corporation ("Mediconsult"). The Executive has been or shall be granted options
to purchase the number of shares of Common Stock of the Mediconsult under
Mediconsult's 1996 Stock Option Plan, at an exercise price equal to the fair
market value on the date of grant, which shall vest (subject to continued
employment) as set forth as Schedule A, and shall also be subject to the terms
and conditions of the applicable option grant agreement and the 1996 Stock
Option Plan.
(c) Performance Bonus Plan. Executive shall be included as a
participant in any performance bonus plan introduced by the Corporation. It is
anticipated that the Corporation shall develop such a performance bonus plan for
the 1999 calendar year. This shall be a team-based plan and shall be dependent
upon overall 1999 year-end performance of both the organization and its senior
management. Any Deliverable-Based Bonus programs will be incorporated in this
program. It is anticipated that if all business performance targets are realized
during 1999, that the resulting bonus shall approximate ten to fifteen percent
of each participant's base salary. This bonus is not guaranteed by the
Corporation and is extended at the sole discretion of the Corporation.
5. Employee Benefits. (a) Business. The Corporation shall reimburse
the Executive for the reasonable business expenses incurred by him for or on
behalf of the Corporation in furtherance of the performance of his duties
hereunder. Such reimbursement shall be subject to receipt by the Corporation
from the Executive of such an expense statements and such vouchers and other
reasonable verifications as the Corporation shall require to satisfactorily
evidence such expenses, and shall also be subject to such policies as the
Corporation shall establish from time to time.
(b) Benefit Programs. The Executive shall be entitled to
participate, in accordance with the terms thereof, in employee benefit plans and
programs maintained for the executives of the Corporation, including, without
limitation, any health, hospitalization and medical insurance programs and in
any pension or retirement or other similar plans or programs. An employee
benefit program is expected to be established in February 1999 with a value of
approximately 12% of base salary. Should a program of less than 12% be created,
the difference between the plain value and 12% will become part of base salary.
The foregoing shall not be construed to require the Corporation to establish any
such plans or programs, or to prevent the Corporation from modifying or
terminating any such plans or programs once established.
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(c) Vacation. The Executive shall be entitled to four (4)
weeks of vacation each employment year during the term of this Agreement, taken
consecutively or in segments, subject to the effective discharge of the duties
of the Executive hereunder. Vacation not taken during any such year cannot be
rolled over to the following or any subsequent year.
(d) Office Equipment. During the term of the Executive's
employment hereunder, the Corporation shall afford the Executive the use of a
cellular telephone. The Corporation shall bear the cost of a service contract
for the cellular telephone, as well as all monthly charges and charges in
respect of calls incident to the performance of the duties of the Executive and
tax and related charges.
6. Termination of Benefits. (a) Termination. Notwithstanding
anything to the contrary contained herein, the Executive's employment with the
Corporation, as well as the Executive's right to any compensation which
thereafter otherwise would accrue to him hereunder or in connection therewith,
shall terminate upon the earliest to occur of the following events:
(i) the death or disability (as defined below) of the
Executive,
(ii) the expiration of the Term of this Agreement,
(iii) the Executive's termination of such employment, or
(iv) upon delivery of written notice, with or without
"cause" (as defined below), to the Executive from the Corporation of such
termination.
(b) Certain Definitions. For the purpose of this Section 6,
(i) the term "cause" is defined as (A) the commission by the Executive of a
felony or an offense involving moral turpitude, the Executive's engaging in
theft, embezzlement, fraud, obtaining funds or property under false pretenses,
or similar acts of misconduct with respect to the property of the Corporation or
its employees, stockholders, affiliates, customers, licensees, licensors or
suppliers, (B) the repeated failure by the Executive to perform his duties
hereunder or comply with reasonable policies or directives of the Board of
Directors of the Corporation, (C) misfeasance or malfeasance, or (D) the breach
of this Agreement or the Conditions of Employment referred to below by the
Executive in any material respect, and (ii) the Executive shall be deemed
"disabled" if, at the Corporation's option, it gives notice to the Executive or
his representative that due to a disabling mental or physical condition, he has
been prevented, for a continuous period of 90 days during the Term or for an
aggregate of 120 days during any six month period during the Term, from
substantially performing those duties which he
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was required to perform pursuant to the provisions of this Agreement prior to
incurring such disability.
(c) Severance; Release. In the event of and upon the
termination by the Corporation of the employment of the Executive under this
Agreement without "cause" at any time after the expiration of 180 days from the
commencement of employment of Executive with the Corporation, in addition to the
Salary and other compensation (including cash bonuses, incentive and performance
compensation) earned hereunder and unpaid or not delivered through the date of
termination and any benefits referred to in Section 5(b) hereof in which the
Executive has a vested right under the terms and conditions of the plan or
program pursuant to which such benefits were granted (without regard to such
termination), the Corporation shall pay the Executive a cash payment (the
"Severance Payment") equal in the aggregate to the sum of six months' Salary and
all bonuses earned by the Executive during the six (6) months preceding such
termination. In the event of termination of this Agreement by the Corporation by
reason of the death or disability of the Executive, the Corporation shall not be
obligated to make the Severance Payment to the Executive. The Severance Payment
shall be paid to the Executive in consecutive, equal monthly installments, on
the fifteenth day of each calendar month commencing during the month next
following the (1) the first to occur of the month in which the Executive is no
longer employed by the Corporation and (2) the effective date of a general
release from the Executive in customary form for such circumstances. The
Severance Payment shall be in lieu of any other claim for compensation under
this Agreement, any wage continuation law or at common law, or any claim to
severance or similar payments or benefits which the Executive may otherwise have
or make. Without limiting any other rights or remedies which the Corporation may
have, it is understood that the Corporation shall be under no further obligation
to make any such severance payments and shall be entitled to be reimbursed
therefor by the Executive or his estate if the Executive violates any of the
covenants set forth in the Conditions of Employment attached as Exhibit A
hereto. In the event that the Severance Payment shall become payable to the
Executive, the Executive shall not be required, either in mitigation of damages
or by the terms of any provisions of this Agreement or otherwise, to seek or
accept other employment, and if the Executive does accept other employment, any
benefits or payments under this Agreement shall not be reduced by any
compensation earned or other benefits received as a result of such employment.
7. Deductions and Withholding. The Executive agrees that the
Corporation shall withhold from any and all payments required to be made to the
Executive pursuant to this Agreement (including the travel allowance) all
federal, state, local and/or other taxes which are required to be withheld in
accordance with applicable statutes and/or regulations from time to time in
effect.
8. Non-Solicitation, Restrictive Covenants, Confidentiality and
Injunctive Relief. (a) The Executive shall execute and deliver to and for the
benefit of the Corporation,
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the Conditions of Employment attached as Exhibit A hereto, pertaining, among
other matters, to proprietary information, confidentiality obligations, and
non-competition obligations, the provisions of which shall be deemed
incorporated herein by reference as if set forth herein (the "Conditions of
Employment"). Without limiting the forgoing, the following shall be applicable:
(i) Non-Competition. In view of the fact that activity
of the Executive in violation of the terms hereof is likely to adversely affect
the Corporation and its subsidiaries and affiliates and would deprive the
Corporation of the benefits of its bargain hereunder, and to preserve the
goodwill associated with the Corporation's business, the Executive hereby agrees
that during the period commencing on the date hereof and ending on the first
(1st) anniversary of the date on which the Executive's employment with the
Company and its subsidiaries and affiliates terminates for any reason (the
"Non-Compete Period"), he will not, without the express written consent of the
Corporation, directly or indirectly, anywhere in the United States or Canada,
engage in any activity which is, or participate or invest in, or provide or
facilitate the provision of financing to, or assist (whether as owner,
part-owner, shareholder, member, partner, director, officer, trustee, employee,
agent or consultant, or in any other capacity), any business, organization or
person other than the Corporation (or any subsidiary or affiliate of the
Corporation), whose business, activities, products or services are directly
competitive with any of the business, activities, products or services conducted
by or in active planning by the Corporation on the date the Executive's
employment with the Corporation terminates and which are in the Corporation's
Field of Interest (each a "Competitive Business"); provided that the Executive
shall be permitted to be employed by an entity which operates an ancillary
business in the Corporation's Field of Interest so long as the Executive is not
involved in such ancillary business. For purposes of this Section 8(a)(i), the
Corporation's "Field of Interest" shall include, without limitation, the
development, implementation or sale of on-line marketing or advertising programs
to pharmaceutical and other healthcare organizations and any other business
activity engaged in, conducted by or in active planning by the Corporation or
its subsidiaries or affiliates on the date the Executive's employment with the
Corporation terminates. Notwithstanding anything in this Section 8(a)(i) to the
contrary, the Executive shall not be prohibited from participating, directly or
indirectly, in any activity or business with Internet operations, including
companies providing goods or services through or providing e-commerce and
content or otherwise, that is not a Competitive Business.
Notwithstanding anything herein to the contrary, the Executive may
make passive investments in any enterprise the shares of which are publicly
traded if such investment constitutes less than one percent (1%) of the equity
of such enterprise.
(ii) Non-Solicitation. In addition to the restrictions
in Section 8(a)(i) above, the Executive also agrees that he will not during the
Non-Compete Period: (1) hire, attempt to hire, or participate in any way in any
effort by any
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person or entity (other than the Corporation or any of its direct and/or
indirect subsidiaries and affiliates) to hire or attempt to hire any person who
is at the time (or was within the immediately preceding six (6) months) an
officer or employee of the Corporation or its direct and/or indirect
subsidiaries or affiliates; (2) encourage any officer or employee of the
Corporation or its direct or indirect subsidiaries or affiliates to terminate
his or her relationship or employment with such entity; or (3) on behalf of
himself or any persons or entity, other than the Corporation or any of its
direct or indirect subsidiaries and affiliates, solicit or accept business from
any client of the Corporation or its direct or indirect subsidiaries in the
Corporation's Field of Interest; provided, however, that the foregoing provision
will not prevent the Executive from employing or offering to employ any such
person who has been terminated by the Corporation or a subsidiary or affiliate
prior to the commencement of employment discussions between the Executive and
such employee, and the Executive will be permitted to hire and offer to hire
non-executive employees of the Corporation who are contacted as a result of the
use of general newspaper or electronic advertisement and other general
non-targeted recruitment techniques in the ordinary course of business and
consistent with past practices as opposed to targeted solicitations of any one
or more of the Corporation's employees.
For purposes of this Agreement, any reference to the subsidiaries of
the Corporation shall be deemed to include all entities directly or indirectly
controlled by it through an ownership of more than fifty percent (50%) of the
voting interests, the term "affiliate" shall mean, with respect to any person or
entity, any person or entity which directly or indirectly controls, is
controlled by or is under common control with such person or entity, and the
term "person" shall mean an individual, a corporation, an association, a
partnership, a limited liability company, an estate, a trust, and any other
entity or organization.
(iii) Scope of Agreement. The parties acknowledge that
the time, scope, geographic area and other provisions of this Section 8 have
been specifically negotiated by the sophisticated commercial parties and agree
that (1) all such provisions are reasonable under the circumstances of this
Agreement, (2) are given as an integral and essential part of this Agreement and
(3) but for the covenants of the Executive contained in this Section 8, the
Corporation would not have entered into this Agreement. The Executive has
independently consulted with his counsel and has been advised in all respects
concerning the reasonableness and proprietary of the covenants contained herein,
with specific regard to the business to be conducted by the Corporation and its
subsidiaries and affiliates, and represents that this Agreement is intended to
be, and shall be, fully enforceable and effective in accordance with its terms.
(iv) Severability. In the event that any covenant
contained in this Agreement shall be determined by any court of competent
jurisdiction to be unenforceable by reason of its extending for too great a
period of time or over too great a geographical area or by reason of its being
too extensive in any other respect, it shall be
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interpreted to extend only over the maximum period of time for which it may be
enforceable and/or over the maximum geographical area as to which it may be
enforceable and/or to the maximum extent in all other respects as to which it
may be enforceable, all as determined by such court in such action.
(v) Confidential Information. As used in this Agreement,
"Confidential Information" means information belonging to the Corporation which
is of value to the Corporation in the course of conducting its business and the
disclosure of which is reasonably likely to result in a competitive or other
disadvantage to the Corporation. Confidential Information includes, without
limitation, financial information, reports, and forecasts; inventions,
improvements and other intellectual property; trade secrets; know-how; designs,
processes or formulae, software; market or sales information or plans; customer
lists; and business plans, prospects and opportunities (such as possible
acquisitions or dispositions of businesses, assets or facilities) which have
been discussed or considered by the management of the Corporation. Confidential
Information includes information developed by the Executive in the course of the
Executive's employment or retention by the Company, as well as other information
to which the Executive may have access in connection with the Executive's
employment. Confidential Information also includes the confidential information
of others with which the Corporation or any subsidiary or affiliate has a
business relationship. Notwithstanding the foregoing, Confidential Information
does not include information in the public domain, unless due to breach of the
Executive's duties under Section 8(a)(vi) or information known to the Executive
prior to his employment or retention by the Company.
(vi) Confidentiality. The Executive understands and
agrees that the Executive's employment creates a relationship of confidence and
trust between the Executive and the Company with respect to all Confidential
Information. At all times, both during the Executive's employment with the
Corporation and after his termination, the Executive will keep in confidence and
trust all such Confidential Information, and will not use or disclose any such
Confidential Information without the written consent of the Corporation, except
as may be necessary in the ordinary course of performing the Executive's duties
to the Corporation.
(vii) Inventions. The Executive recognizes that the
Corporation possess a proprietary interest in all of the Confidential
Information and has the exclusive right and privilege to use, protect by
copyright, patent or trademark, or otherwise exploit the processes, ideas and
concepts described therein to the exclusion of the Executive, except as
otherwise agreed between the Corporation and the Executive in writing. The
Executive expressly agrees that any products, inventions, discoveries or
improvements made by the Executive or his agents in the course of the
Executive's employment or during any period that the Executive has heretofore
been a consultant to the Corporation, including any of the foregoing which is
based on or arises out of the Confidential Information, shall be the property of
and inure to the exclusive benefit of the Corporation. The Executive further
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agrees that any and all products, inventions, discoveries or improvements
developed by the Executive (whether or not able to be protected by copyright,
patent or trademark) during the course of his employment or during any period
that the Executive has heretofore been a consultant to the Corporation, or
involving the use of the time, materials or other resources of the Corporation
or any of its subsidiaries or affiliates, shall be promptly disclosed to the
Corporation and shall become the exclusive property of the Corporation and the
Executive shall execute and deliver any and all documents necessary or
appropriate to implement the foregoing.
(viii) Business Opportunities. The Executive agrees,
while he is employed by the Corporation, to offer or otherwise make known or
available to it, as directed by the Board of Directors of the Corporation and
without additional compensation or consideration, any business prospects,
contracts or other business opportunities that he may discover, find, develop or
otherwise have available to him in the Corporation's Field of Interest, and
further agrees that any such prospects, contacts or other business opportunities
shall be the property of the Corporation.
(ix) Documents, Records, etc. All documents, records,
data, apparatus, equipment and other physical property, whether or not
pertaining to Confidential Information, which are furnished to the Executive by
the Corporation or are produced by the Executive in connection with the
Executive's employment will be and remain the sole property of the Corporation.
The Executive will return to the Corporation all such materials and property as
and when requested by the Corporation. In any event, the Executive will return
all such materials and property immediately upon termination of the Executive's
employment for any reason. The Executive will not retain with the Executive any
such material property or any copies thereof after such termination.
(x) Third-Party Agreements and Rights. The Executive
hereby confirms that the Executive is not bound by the terms of any agreement
with any previous employer or other party which restricts in any way the
Executive's use or disclosure of information reasonably likely to be useful or
necessary to the performance by the Executive of his services hereunder, or the
Executive's engagement in any business. The Executive represents to the
Corporation that the Executive's execution of this Agreement, the Executive's
employment with the Corporation and the performance of the Executive's proposed
duties for the Corporation will not violate any obligations the Executive may
have to any such previous employer or other party. In the Executive's work for
the Corporation, the Executive will not disclose or make use of any information
in violation of any agreements with or right of any such previous employer or
other party, and the Executive will not bring to the premises of the Corporation
any copies or other tangible embodiments of non-public information belonging to
or obtained from any such previous employment or other party.
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(xi) Litigation and Regulatory Cooperation. During and
after the Executive's employment, the Executive shall cooperate fully with the
Corporation in the defense or prosecution of any claims or actions now in
existence or which may be brought in the future against or on behalf of the
Corporation which relate to events or occurrences that transpired while the
Executive was employed by the Corporation. The Executive's full cooperation in
connection with such claims or actions shall include, but not be limited to,
being available to meet with counsel to prepare for discovery or trial and to
act as a witness on behalf of the Corporation at mutually convenient times.
During and after the Executive's employment, the Executive also shall cooperate
fully with the Corporation in connection with any such investigation or review
of any federal, state or local regulatory authority as any such investigation or
review relates to events or occurrences that transpired while the Executive was
employed by the Corporation. The Corporation shall reimburse the Executive for
any reasonable out-of-pocket expenses incurred in connection with the
Executive's performance of obligations pursuant to this subsection (xi). The
performance by the Executive under this subsection (xi) after the termination of
the Executive's employment with the Corporation shall be subject to his other
employment obligations.
(b) The provisions of this Section 8 shall survive the
termination or expiration of this Agreement, irrespective of the reason
therefor, including under circumstances in which the Executive continues
thereafter in the employ of the Corporation.
9. Insurance. The Executive agrees that the Corporation may from
time to time and for the Corporation's own benefit apply for and take out life
insurance covering the Executive, either independently or together with others,
in any amount and form which the Corporation may deem to be in its best
interests. The Corporation shall own all rights in such insurance and in the
cash values and proceeds thereof and the Executive shall not have any right,
title or interest therein. The Executive agrees to assist the Corporation, at
the Corporation's expense, in obtaining any such insurance by, among things,
submitting to customary examinations and correctly preparing, signing and
delivering such applications and other documents as reasonably may be required.
Nothing contained in this Section 10 shall be construed as a limitation on the
Executive's right to procure any life insurance for his own personal needs.
10. Notices. All notices shall be in writing and shall be deemed to
have been duly given to a party hereto on the date of such delivery, if
delivered personally, or on the third day after being deposited in the mail if
mailed via registered or certified mail, return receipt requested, postage
prepaid, or on the next business day after being sent by recognized national
overnight courier service, in the case of the Executive at his current address
as set forth in the Corporation's records, and in the case of the Corporation,
at it address set forth above.
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11. Assignability and Binding Effect. This Agreement shall inure to
the benefit of and shall be binding upon the heirs, executors, administrators,
successors and legal representatives of the Executive, and shall inure to the
benefit of and be binding upon the Corporation and its successors and assigns.
The Executive may not assign, transfer, pledge, encumber, hypothecate or
otherwise dispose of this Agreement, or any of his rights or obligations
hereunder, and any such attempted delegation or disposition shall be null and
void and without effect.
12. Severability. In the event that any provisions of this Agreement
would be held to be invalid, prohibited or unenforceable in any jurisdiction for
any reason (including, but not limited to, any provisions which would be held to
be unenforceable because of the scope, duration or area of its applicability),
unless narrowed by construction, this Agreement shall, as to such jurisdiction
only, be construed as if such invalid, prohibited or unenforceable provision had
been more narrowly drawn so as not to be invalid, prohibited or unenforceable
(or if such language cannot be drawn narrowly enough, the court making any such
determination shall have the power to modify such scope, duration or area or all
of them, but only to the extent necessary to make such provision or provisions
enforceable in such jurisdiction, and such provision shall then be applicable in
such modified form). If, notwithstanding the foregoing, any provision of this
Agreement would be held to be invalid, prohibited or unenforceable in any
jurisdiction, such provision shall be ineffective to the extent of such
invalidity, prohibition or unenforceability, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
13. Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of Ontario, without regard to principles of
conflict of laws and regardless of where actually executed, delivered or
performed.
14. Complete Understanding; Counterparts. This Agreement constitutes
the complete understanding and supersedes any and all prior agreements and
understandings between the parties with respect to its subject matter, and no
statement, representation, warranty or covenant has been made by either party
with respect thereto except as expressly set forth herein. This Agreement shall
not be altered, modified, amended or terminated except by written instrument
signed by each of the parties hereto. The Section and paragraph headings
contained herein are for convenience only, and are not part of and are not
intended to define or limit the contents of said Sections and paragraphs. This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which, when taken together, shall constitute one and the
same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
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Xxxxxxxxxxx.xxx Canada
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
/s/ W. Xxxxx Xxxxxx
--------------------------------------
Executive: W. Xxxxx Xxxxxx
----------------------------
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Exhibit A
XXXXXXXXXXX.XXX CANADA
CONDITIONS OF EMPLOYMENT
As an inducement to Xxxxxxxxxxx.xxx Canada (the "Corporation") to
employ Xxxxx X. Xxxxxx (the "Employee"), and in consideration of the employment
and continued employment of the Employee by the Corporation and the compensation
and other benefits paid or to be paid to the Employee and the stock options to
be issued to the Employee, it is understood and agreed as follows:
1. The Employee acknowledges and agrees that Employee's employment
with the Corporation will necessarily involve the Employee's understanding of
and access to trade secrets and confidential or other proprietary information of
or pertaining to the organization, business and affairs of, or developed or
acquired for or by, the Corporation and/or its Affiliates (as hereinafter
defined) or their clients, licensees and distributors, including without
limitation, information relating to computer software and programs, policies,
operational methods, research, data, marketing plans and opportunities,
procedures, strategies, mailing lists, data bases, client lists, notations of
clients (in or as part of a rolodex, mailing list or in any other form) and
forecasts of the Corporation and/or its Affiliates or any client of the
Corporation and/or its Affiliates ("Proprietary Information"), and understands
that the Employee will enjoy a special position of trust and confidence with the
Corporation. Accordingly, the Employee agrees that the Employee will keep secret
all Proprietary Information and will not, directly or indirectly, either during
the term of the Employee's employment by the Corporation or at any time
thereafter, disclose or disseminate to any person or entity not expressly
approved by the President of the Corporation as an authorized recipient thereof,
or make use of, for any purpose whatsoever, any Proprietary Information of the
Corporation and/or its Affiliates or any client of the Corporation and/or its
Affiliates. As it is sometimes difficult to separate Proprietary Information
from that which is not, the Employee will regard all information gained as a
result of the Employee's association with the Corporation as Proprietary
Information.
The preceding paragraph, however, shall not apply to disclosure of
information (i) which at the time of disclosure to the Employee was in the
public domain, or (ii) which at the time of disclosure to the Employee the
Employee proves was already known to the Employee from other sources and capable
of being used or disclosed by the Employee, as the case may be, free of any
other agreements or restrictions. For purposes hereof, the term "Affiliates"
shall include all entities or persons controlling, controlled by, or under
common control with, the Corporation.
The Employee agrees that the Corporation may from time to time adopt
rules and regulations regarding the manner in which Proprietary Information is
treated. In such
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event, the Employee will comply with all such rules and regulations in addition
to, but not in limitation of, the Employee's obligations hereunder.
2. Title to all documentation containing any Proprietary
Information, whether or not developed or produced by the Employee (including the
ideas and concepts contained therein), is and shall remain vested in the
Corporation and its Affiliates. Without limiting the generality of the
foregoing, the Employee shall not make any copies of and/or remove from the
premises of the Corporation any such documentation without specific
authorization. The Employee will not leave any such documentation accessible to
unauthorized persons at any time, and shall take all reasonable steps to prevent
documentation (including the ideas and concepts contained therein) from being
used by or disclosed to anyone who is not authorized to use or receive same. The
Employee will deliver promptly to the Corporation on termination of the
Employee's employment by the Corporation, or at any sooner time it may request,
all such documentation and all other assets and materials which belong to the
Corporation or its Affiliates, which the Employee then possesses or has under
the Employee's control.
3. The Employee will promptly and fully disclose to the President of
the Corporation all opportunities and/or information which is or may be useful
or relate to the Corporation and/or its Affiliates or any aspect of their
business that the Employee (individually or jointly with others) may discover,
conceive of, make, invent, develop, suggest, assemble, reduce to practice or
acquire during the period of or in connection with the Employee's employment by
the Corporation (collectively "Information"), all of which shall be the sole,
exclusive and absolute property of the Corporation. The Employee agrees and
acknowledges that all Information shall constitute Proprietary Information.
4. The Employee shall have no authority to make any representation,
warranty, guarantee, agreement or promise concerning the Corporation or its
Affiliates, or the business of the Corporation or its Affiliates, unless
specifically approved by the President of the Corporation, and any such
unapproved representation, warranty, guarantee, agreement or promise shall not
be valid or binding on the Corporation or its Affiliates. The Employee shall at
all times comply with all relevant laws, including, without limitation, all
foreign, federal and state laws, and all policies and procedures of the
Corporation.
5. During any period that the Employee is employed by the
Corporation and thereafter, (i) for a period of [two (2) years] in the event
that Executive shall terminate his employment or the Executive's employment
shall be terminated by the Corporation for "cause" (as defined in the
Executive's employment agreement), or (ii) for a period of [one (1) year] in the
event that the Corporation shall terminate the Executive's employment without
"cause", the Employee will not directly or indirectly under any circumstance
whatsoever:
(a) solicit, raid, entice or induce any person or entity which
presently is, or at any time during the period of the Employee's employment has
been or shall be, or has been or shall be solicited or contacted by the
Corporation and/or its Affiliates to become, a client, customer,
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distributor or licensee of the Corporation and/or its Affiliates, to become a
client, customer, distributor or licensee of any person or entity (other than
the Corporation and its Affiliates) with respect to any business, product or
services of the type, or competitive with those, provided, sold, licensed or
offered by the Corporation and/or its Affiliates at any time during the period
of the Employee's employment with the Corporation, or attempt in any manner to
persuade any such person or entity to cease to do business or to reduce the
amount of business which such person or entity has customarily done or
contemplates doing with the Corporation and/or its Affiliates;
(b) compete, engage or participate in, or become employed by,
or render any services in connection with, any business that competes, in any
manner with the business of the Corporation, in any of the geographical markets
served by the Corporation, operated or managed or then proposed to be acquired,
operated or managed by the Corporation or any of its Affiliates during the term
of the Employee's employment with the Corporation or directly or indirectly have
any interest in, as owner, stockholder, partner, director, officer, member,
employee, consultant or otherwise, any business which is competitive with, or
sells, provides or licenses products or services of the type competitive with
those sold, provided and licensed by the Corporation during the term of
Employee's employment with the Corporation; provided, however, that the Employee
may hold not more than 5% of the outstanding securities of any such corporation
listed on a national securities exchange;
(c) make any disparaging statement concerning the Corporation
or its Affiliates, or the management, the Board of Directors, management
decisions, operating policies or Board decisions or actions of the Corporation
or its Affiliates, whether or not libelous or defamatory;
(d) willfully interfere with or otherwise jeopardize any
relationship of the Corporation and/or its Affiliates with any client,
distributor, licensee or licensor; or
(e) employ, attempt to employ or arrange to have any other
person or entity employ, any person, who is or was, during the two-year period
ending on the date of termination of the Employee's employment, in the employ of
the Corporation or its Affiliates, or induce any such person to leave the employ
of the Corporation or its Affiliates.
6. The Employee represents and warrants that the Employee is not a
party to any agreement, contract or understanding, whether of employment,
consultancy or otherwise, in conflict with these Conditions of Employment or
which would in any way restrict or prohibit the Employee from undertaking or
performing services for the Corporation. The Employee hereby acknowledges that
he has not foregone any other opportunity, financial or otherwise, in connection
with commencing or rendering his services to the Corporation. The Employee
hereby authorizes the Corporation and/or its Affiliates to make known the terms
of these Conditions of Employment and the fact of the Employee's responsibility
under these Conditions of Employment to any person or entity, including, without
limitation, clients of the Corporation and/or its Affiliates and the Employee's
future employers.
7. (a) By reason of the fact that irreparable harm would be
sustained by the Corporation and/or its Affiliates in the event that there is a
breach by the Employee of any of the
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terms, covenants and agreements set forth herein, in addition to any other
rights that the Corporation and/or its Affiliates may otherwise have, the
Corporation and/or its Affiliates shall be entitled to apply to any court of
competent jurisdiction and obtain specific performance and/or injunctive relief
against the Employee, without making a showing that monetary damages would be
inadequate and without the requirement of posting any bond or other security
whatsoever, in order to enforce or prevent any breach or threatened breach of
any of the terms, covenants and agreements set forth herein, and the Employee
will not object thereto.
(b) Nothing contained in these Conditions of Employment shall be
construed as a contract of employment or engagement by or with the Corporation
or any Affiliate nor shall anything contained in these Conditions of Employment
impose any obligation upon the Corporation or any Affiliate to continue the
Employee's employment or engagement to pay the Employee any compensation. Each
of the obligations of the Employee under this agreement shall survive the
termination of the Employee's employment by the Corporation for any reason
whatsoever.
(c) The Employee acknowledges that: (i) the enforcement of any of
the restrictions on the Employee or any other provisions contained in these
Conditions of Employment (the "Restrictive Covenants") against the Employee
would not impose any undue burden upon the Employee; and (ii) none of the
Restrictive Covenants is unreasonable as to duration or scope. If
notwithstanding the foregoing, any provision herein would be held to be invalid,
prohibited or unenforceable in any jurisdiction for any reason (including, but
not limited to, any provision which may be held unenforceable because of the
scope, duration or area of its applicability), unless narrowed by construction,
such Restrictive Covenant shall, as to such jurisdiction, be construed as if
such invalid, prohibited or unenforceable provision had been more narrowly drawn
so as not to be invalid, prohibited or unenforceable (and the court making any
such determination as to any provision shall have the power to modify such
scope, duration or area or all of them, and such provision shall then be
applicable in such modified form in such jurisdiction only). If, notwithstanding
the foregoing, any provision herein would be held to be invalid, prohibited or
unenforceable in any jurisdiction for any reason, such provision, as to such
jurisdiction, shall be ineffective to the extent of such invalidity, prohibition
or unenforceability, without invalidating the remaining provisions of this
agreement or affecting the validity or enforceability of such provision in any
other jurisdiction.
(d) These Conditions of Employment shall inure to the benefit of the
Corporation and its Affiliates, and their respective successors and assigns and
shall be binding upon the Employee and the Employee's heirs, executors,
administrators and other legal representatives and successors. These Conditions
of Employment shall be governed by and construed in accordance with the internal
laws of the State of New Jersey applicable to contracts made and to be entirely
performed in New Jersey (without giving effect to contrary rules as to conflict
of laws). These Conditions of Employment (and any written employment agreement
executed and delivered by the Corporation) sets forth the parties' entire
agreement with respect to its subject matter. No provisions of this agreement
may be changed, terminated, or waived, or addenda or other provisions added
except by a writing signed by each of the parties hereto. No waiver of any
provision in one instance shall be a waiver of such provision in other instances
or a waiver of any other provision. Wherever the context so requires, the
masculine includes the feminine and the neuter genders, and the singular
includes the plural, and vice versa.
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Accepted and Agreed:
Date: February 23, 1999 /s/ W. Xxxxx Xxxxxx
------------------------------------
Name: W. Xxxxx Xxxxxx
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