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Exhibit 10.28
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("this Agreement") is made and effective this
15th day of December 1998, by and between XXXXXX TECHNOLOGIES, INC., a Florida
corporation located at 000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, 00000
("Company"), and Xxxxxxx X. Xxxx ("Employee").
WITNESSETH:
WHEREAS, Company believes it is in Company's best interest to employ
Employee, and Employee desires to be employed by Company; and
WHEREAS, Company and Employee desire to set forth the terms and conditions
on which Employee shall be employed by and provide his services to Company;
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. Company hereby employs Employee in its business as Vice
President of Professional Services, 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 ("Employment Period").
3. Salary and Base Compensation. Employee shall be entitled to receive
salary during the Employment Period at the rate of One Hundred and Fifty
Thousand ($150,000) per annum, as such may be increased pursuant to Section 9
hereof (the "Base Salary"). In addition to the Base Salary paid to Employee
during the Employment Period, Employee shall be entitled to receive Benefits,
Bonus Compensation, and Stock Option (as those terms are hereinafter defined)
during the Employment Period. The Base Salary shall be payable biweekly in
accordance with the current normal payroll policies of Company, which policies
may be changed by Company from time to time in its sole discretion, and shall
be subject to all appropriate withholding taxes.
4. Business Expenses and Reimbursements. Employee shall be entitled to
reimbursement by the Company for ordinary and necessary business expenses
incurred by Employee in the performance of his duties for the Company, which
types of expenditures shall be determined and approved by the Company, and
further provided that:
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(a) Each such expenditure is of a nature qualifying it as a proper
deduction on the Federal and State income tax returns of Company as a business
expense and not as deductible compensation to Employee; and
(b) Employee furnishes Company with adequate records and other
documentary evidence required by federal and State statutes and regulations
for the substantiation of such expenditures as deductible business expenses of
Company and not as deductible compensation to Employee, as well as any other
documentation reasonably requested by Company.
5. Benefits. Employee shall be entitled to receive the following
Benefits during the Employment Period:
(a) Employee agrees that the Base Salary, Bonus Compensation, the
Stock Option, and the Benefits and the other compensation provided in
accordance with this Agreement and the offer letter dated December 15, 1998,
are the sole and exclusive compensation of Employee for his duties hereunder.
(b) Continuing throughout the Employment Period:
(i) Employee shall receive all of the employee benefits
including, without limitation, pension, disability, profit sharing and
retirement benefits, vacation provided at any time by Company to any of its
employees in the sole and absolute discretion of the Board of Directors of the
Company (the "Board");
(ii) The Company shall provide health insurance providing full
hospital, medical and dental coverage pursuant to Company plans in effect from
time to time for Employee and each of Employee's dependents at similar expense
to Employee or such dependents as charged to other employees of the Company.
6. Bonus Compensation. Employee shall be eligible to receive an annual
bonus that is targeted at 33% of Base Salary earnings for optimum performance
for each fiscal year during the Employment Period. The Bonus Compensation plan
will be a combination of personal MBO's as well as Company performance to its
Strategic Objectives for the fiscal year. The details of the performance
criteria of the annual Bonus Compensation plan will reviewed with the Employee
following the commencement of the Employment Period. Employee must be employed
as of December 31st of a given fiscal year in order to be eligible for that
year's Bonus Compensation. The Company, in its sole discretion may change,
alter or discontinue any or all bonus compensation plans at any time.
7. Stock Options. In addition to Employee's Base Salary, Benefits and
Bonus Compensation, Employee shall be granted a qualified incentive stock
option to purchase a number of shares equal to Fifty Thousand (50,000) at an
exercise price no greater than $3.25 per share, which options will vest over a
four-year period. The options shall be granted to Employee
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pursuant to an Option Agreement satisfactory as to its other terms to the
Company, and all of these grants and terms are subject to the approval of the
Board of Directors.
8. Registration Rights. In the event Company registers common stock held
by other employees of Company, then the Company shall also register a prorata
portion of the stock held by Employee.
9. Compensation Review. The President/COO and/or Board shall from time
to time, no less frequently than annually, review Employee's compensation and
may (in his sole discretion) increase, but not decrease, the compensation
provided for in Section 3 hereof. Any such increase in compensation shall be
valid only if in writing, executed by the President/COO, and such writing shall
constitute an amendment solely to the payments to be made to Employee under
this Agreement, without waiver or modification of any other provision hereof.
10. Invention Assignment and Confidentiality Agreement. Against the
execution and delivery of this Agreement, Employee shall enter into an
agreement in the form of Exhibit "A" hereto (the "Invention Assignment and
Confidentiality Agreement").
11. Non-Competition Agreement. Against the execution and delivery of this
Agreement, Employee shall enter into a non-competition and non-solicitation
agreement (in the form of Exhibit "B" hereto) (the "Non-Competition Agreement")
which also, notwithstanding the at will nature of the employment, provides for
a severance benefit under certain circumstances.
12. No Other Compensation or Benefits. Employee agrees that the
compensation set forth in this Agreement is the sole and exclusive compensation
of Employee for his duties hereunder, and that he shall have no rights to
receive any other compensation or benefits of any nature.
13. Duties. During the Employment Period:
(a) Employee shall furnish all manner of services in connection with
his position as the Vice President of Professional Services or as otherwise
designated by the President/COO including, without limitation, primary
responsibility for such duties as shall be deemed by the President/COO
appropriate to carry out the policies and programs of the Board and as from
time to time may be delegated or assigned to him/her by the Board;
(b) Employee shall report directly to the President/COO in the
performance of all his duties herein.
(c) Employee shall comply with all Company policies for the employees
as such policies may exist from time to time.
(d) Employee shall devote his entire time, energy and skill to the
service of Company and the promotion of Company's interests, and shall use his
best efforts in the
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performance of his/her services hereunder. The parties agree that Employee may
not, during the Employment Period, be engaged in any other business activity
whether or not such activity is pursued for gain, profit, or other pecuniary
advantage including, without limitation, management or management consulting
activities; provided, however, Employee may invest his personal assets in
businesses where the form or manner of such investment will not require
services on the part of Employee conflicting with the duties of Employee under
this Agreement and in which his participation is solely that of a passive
investor. Employee agrees to abide by all rules and regulations established
from time to time by the President/COO and/or the Board; and all commissions,
fees or other income earned and received by Employee, if any, in furtherance of
the business of Company, or its affiliates or from any other business or
financial opportunity or endeavor in which Employee is an active participant
and not a passive investor, shall be accepted by Employee for the account of
Company, and shall be remitted to Company within three (3) days of Employee's
receipt thereof.
14. Termination. The Employer may, in its sole discretion, terminate this
Agreement for any reason, subject to the severance obligation outlined in the
Non-Competition Agreement. In the event of termination of employment by either
party, subject to compliance with the Non-Competition Agreement, Employee shall
be entitled to distributions pursuant to the severance provisions more fully
set forth in the Non-Competition Agreement and to all Base Salary which is
fully accrued.
15. Surrender of Records. Upon the termination of the Employee's
employment hereunder, for any reason whatsoever, and in addition to such other
actions as may be reasonably required by Employer, the Employee agrees to
surrender to the Employer, in good condition, any record or records kept by
him/her containing the names, addresses, and other information with regard to
customers or potential customers of the Employer which have been served by the
Employee.
16. Entire Agreement. 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.
17. 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.
18. Assignments. Employee shall not assign his rights and/or obligations
hereunder.
19. 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.
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20. 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.
21. Survival. Notwithstanding anything to the contrary herein, the
provisions of Sections 10 through 28 (inclusive) shall survive and remain in
effect in accordance with their respective terms in the event the employment is
terminated.
22. Waivers. The failure or delay of Company at any time to require
performance by Employee of any provision of this Agreement, even if known,
shall not affect the right of Company to require performance of that provision
or to exercise any right, power or remedy hereunder, and any waiver by Company
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.
23. Specific Performance. Employee acknowledges that the services to be
rendered by Employee hereunder are extraordinary and unique and are vital to
the success of the Company, 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 Company shall be entitled, in addition to all
other rights or remedies, to injunctions restraining such breach, without being
required to show any actual damage or to post any bond or other security.
24. Notices. All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing (including telex
and telegraphic communication) and shall be (as elected by the person giving
such notice) hand delivered by messenger or courier service, telecommunicated,
or mailed (airmail if international) by registered or certified mail (postage
prepaid), return receipt requested, to the addresses listed above or to such
other address as any party may designate by notice complying with the terms of
this Section. Each such notice shall be deemed delivered (a) on the date
delivered if by personal delivery, (b) on the date telecommunicated if by
telegraph, (c) on the date of transmission with confirmed answer back if by
telex or telefax, and (d) on the date upon which the return receipt is signed
or delivery is refused or the notice is designated by the postal authorities as
not deliverable, as the case may be, if mailed.
25. 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) agrees
that any suit, action or legal proceeding arising out of or relating to this
Agreement may be brought in
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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.
26. 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.
27. Employee Representations, Warranties, and Acknowledgements. Employee
represents and warrants to Company that he/she is fully empowered to enter and
perform his/her obligations under this Agreement and, without limitation, that
she 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 Company upon demand for and against any and all
judgments, losses, 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.
28. Governing Law. This Agreement and all transactions contemplated by
this Agreement shall be governed by, and construed and enforced in accordance
with, the internal laws of the State of Florida without regard to principles of
conflicts of laws.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
XXXXXX TECHNOLOGIES, INC.
Its: President/COO: /s/ Xxxxx X. Xxxxx
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EMPLOYEE: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
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EXHIBIT LIST
Exhibit A - Invention Assignment and Confidentiality Agreement
Exhibit B - Non-Solicitation and Non-Compete Agreement
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EXHIBIT A TO EMPLOYMENT AGREEMENT
INVENTION ASSIGNMENT AND CONFIDENTIALITY AGREEMENT
THIS AGREEMENT is entered into this 15th day of December, 1998, by and between
Xxxxxx Technologies, Inc. (DTI), and Xxxxxxx X. Xxxx (hereinafter referred to
as "Employee") for and in consideration of Employee's continued employment or
engagement by DTI and the compensation that Employee shall receive during
Employee's employment or engagement, the parties agree as follows:
1. Both during and after Employee's employment or engagement:
a. Employee shall not disclose to anyone outside DTI any Confidential
Information. "Confidential Information" is defined as information
which has not been made publicly available by DTI or the third party
owner of such information, and
1. Which was developed by DTI, and relates to DTI's past, present, and
future business, including but not limited to developments
(defined below, technical data, specifications, designs,
concepts, discoveries, copyrights, improvements, product
plans, research and development, personal information,
personnel information, financial information, customer
lists, leads, and/or marketing programs;
2. All documents marked as confidential and/or continuing such
information; and/or
3. All information DTI has acquired or received from a third party in
confidence.
b. Employee shall use Confidential Information only for DTI's business
purposes; and
c. Employee shall use any information received in confidence by DTI from
any third party only as permitted by written agreement between DTI and
the third party; and
d. Employee shall not be permitted to justify any disregard of the
obligations of Employee hereunder by using any of the Confidential
Information to guide a search by it of publications and other publicly
available information, selecting a series of items of knowledge from
unconnected sources and fitting them together by use of the integrated
disclosure of the information thereby to justify its disregard of the
obligations of confidence.
2. Employee shall not disclose to DTI, use in DTI's business, or cause DTI to
use any information or material which is confidential to any third party
unless DTI has a written agreement with the third party allowing DTI to
receive and use the confidential
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information or materials. Employee will not incorporate into Employee's
work any material which is subject to the copyrights of any third party
unless DTI has the right to copy and incorporate such copyrighted material.
3. When Employee is no longer employed or engaged by DTI, Employee shall
return to DTI all DTI property, and any and all third party property,
including all Confidential Information, drawings, computer programs or
copies thereof, documentation, notebooks and notes, reports and any other
materials on electronic or printed media.
4. Employee hereby grants, transfers and assigns to DTI all of his 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 solely or
jointly by employee during Employee's employment or engagement, whether or
not subject to patent, copyright or other forms of protection that:
a. Are related to the actual or anticipated business, research or
Development of DTI; and/or
b. Are suggested by or result from any task assigned to Employee or
work performed by Employee for or on behalf of DTI.
Employee acknowledges that the copyrights in Developments created by
Employee in the scope of Employee's employment or engagement, belong to DTI
by operation of law, or may belong to a party engaged by DTI by operation
of law pursuant to a works for hire contract between DTI and such
contracted part. To the extent the copyrights in such works may not be
owned by DTI or such contracted party by operation of law, Employee hereby
assigns to DTI or such contracted party, as the case may be, all copyrights
(if any) Employee may have in Developments.
Items not assigned by this Section 4 are listed and described on the
attached "Schedule of Separate Works". Employee agrees not to include any
part of such items in the materials Employee prepares for DTI unless and
until such items are licensed or assigned to DTI under separate written
agreement.
At all times hereafter, Employee agrees to assist DTI in obtaining patents
or copyrights on any Developments assigned to DTI that DTI, in its sole
discretion, seeks to patent or copyright. Employee also agrees to sign all
documents, and do all things necessary to obtain such patents or
copyrights, to further assign them to DTI, and to reasonably protect
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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 time
hereafter, as his or her agent and attorney-in-fact to perform all acts
necessary to obtain patents and/or copyrights as required by this Agreement
if Employee (i) refuses to perform those acts or (ii) is unavailable,
within the meaning of the United States Patent and Copyright laws. It is
expressly intended by Employee that the foregoing power of attorney is
coupled with an interest.
Employee shall keep complete, accurate, and authentic information and
records on all Developments in the manner and form reasonably requested by
DTI. Such information and records, and all copies thereof, shall be the
property of DTI as to any Developments assigned DTI. Employee agrees to
promptly surrender such information and records at the request of DTI as to
any Developments.
5. In connection with any of the Developments assigned by Section 4, Employee
agrees:
a. To disclose them promptly to DTI, and
b. At DTI's request, to execute separate written assignments to DTI and
do all things reasonable necessary to enable DTI to secure patents,
register copyrights or obtain any other form of protection for
Developments in the United States and in other countries. If Employee
fails or is unable to do so, Employee hereby authorizes DTI to act
under power of attorney for Employee to do all things to secure such
rights.
c. To provide DTI with notice of any inadvertent disclosure of
Confidential Information related to any Development.
6. Without limitation of any other Agreement between Employee and DTI,
Employee shall not employ or engage or attempt to employ or engage the
services of any employee of DTI, either directly or through the agency of a
third party during the term of, or within six (6) months after, the
termination of Employee's employment or engagement with DTI.
7. DTI, its subsidiaries, licensees, successors or assigns, (direct or
indirect) are not required to designate Employee as author of any
Development when such Development is distributed publicly or otherwise.
Employee waives and releases, to the extent permitted by law, all
Employee's rights to such designation and any rights concerning future
modifications of such Developments.
8. Rights, assignments, and representations made or granted by Employee in
this Agreement, are assignable by DTI and are for the benefit of DTI's
successors, assigns, and parties contracted with DTI.
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9. Miscellaneous Provisions.
a) Amendments. The provisions of this Agreement may not be amended,
supplemented, waived or changed orally, but only by a writing signed
by the party as to whom enforcement of any such amendment, supplement,
waiver or modification is sought and making specific reference to this
Agreement.
b) Further Assurances. The parties hereby agree from time to time to
execute and deliver such further and other transfers, assignments and
documents and do all matters and things which may be convenient or
necessary to more effectively and completely carry out the intentions
of this Agreement.
c) Brokers. Each of the parties represents and warrants that such party
has dealt with no broker or finder in connection with any of the
transactions contemplated by this Agreement, and, insofar as such
party knows, no broker or other person is entitled to any commission
or finder's fee in connection with any of these transactions. The
parties each agree to indemnify and hold harmless one another against
any loss, liability, damage, cost, claim or expense incurred by reason
of any brokerage commission or finder's fee alleged to be payable
because of any act, omission or statement of the indemnifying party.
d) Binding Effect. All of the terms and provisions of this Agreement,
whether so expressed or not, shall be binding upon, inure to the
benefit of, and be enforceable by the parties and their respective
administrators, executors, legal representatives, heirs, successors
and permitted assigns.
e) Headings. The headings contained in this Agreement are for convenience
of reference only, are not to be considered a part hereof and shall
not limit or otherwise affect in any way the meaning or interpretation
of this Agreement.
f) Severability. If any provision of this Agreement or any other
Agreement entered into pursuant hereto is contrary to, prohibited by
or deemed invalid under applicable law or regulation, such provision
shall be inapplicable and deemed omitted to the extent so contrary,
prohibited or invalid, but the remainder hereof shall not be
invalidated thereby and shall be given full force and effect so far as
possible. If any provision of this Agreement may be construed in two
or more ways, one of which would render the provision invalid or
otherwise voidable or unenforceable and another of which would render
the provision valid and enforceable, such provision shall have the
meaning which renders it valid and enforceable.
g) Survival. All covenants, agreements, representations and warranties
made herein or otherwise made in writing by any party pursuant hereto
shall survive the execution and delivery of this Agreement and the
termination of employment or engagement of Employee.
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h) Waivers. The failure or delay of any party at any time to require
performance by another party of any provision of this Agreement, even
if known, shall not affect the right of such party to require
performance of that provision or to exercise any right, power or
remedy hereunder. Any waiver by any party of any breach of any
provision of this Agreement should not be construed as a waiver of any
continuing or succeeding breach of such provision, a waiver of the
provision itself, or a waiver of any right, power or remedy under this
Agreement. No notice to or demand on any party in any case shall, of
itself, entitle such party to any other or further notice or demand in
similar or other circumstances.
i) Specific Performance. Each of the parties acknowledges that the
parties will be irreparably damage (and damages at law would be an
inadequate remedy) if this Agreement is not specifically enforced.
Therefore, in the event of a breach or threatened breach by any party
of any provision of this Agreement, then the other parties shall be
entitled, in addition to all other rights or remedies, to injunctions
restraining such breach, without being required to show any actual
damage or to post any bond or other security, and/or to a decree for
specific performance of the provisions of this Agreement.
j) Jurisdiction and Venue. The parties acknowledge that a substantial
portion of negotiations and anticipated performance and execution of
this Agreement occurred or shall occur in Palm Beach County, Florida,
and that, therefore, without limiting the jurisdiction or venue of any
other federal or state courts, each of the parties irrevocably and
unconditionally (a) agrees that any suit, action or legal proceeding
arising out of or relating to this Agreement may be brought in the
courts of record of the State of Florida in Palm Beach County or the
court of the United States, Southern District of Florida; (b) consents
to the jurisdiction of each such court in any suit, action or
proceeding; (c) waives any objection which it may have to the laying
of venue of any such suit, action or proceeding in any of such courts;
and (d) agrees that 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.
k) Remedies Cumulative. Except as otherwise expressly provided herein, no
remedy herein conferred upon any party is intended to be exclusive of
any other remedy, and each and every such remedy shall be cumulative
and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute or otherwise.
No single or partial exercise by any party of any right, power or
remedy hereunder shall preclude any other or further exercise thereof.
l) Governing Law. This Agreement and all transactions contemplated by
this Agreement shall be governed by, and construed and enforced in
accordance with, the internal laws of the State of Florida without
regard to principles of conflicts of laws.
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m) Confidentiality Under Legal Requirement Protection. In the event that
Employee is requested or required (by oral questions, interrogatories,
requests for information or documents in legal proceedings, subpoena,
civil investigative demand or other similar process) to disclose any
of the Confidential Information, Employee shall provide the Company
with prompt written notice of such request or requirement so that the
Company may seek a protective order or other remedy and/or waive the
compliance with the provisions of this agreement. If, in the absence
of a protective order or other remedy or the receipt of a waiver by
the Company, Employee is nonetheless, in the written opinion of
counsel, legally compelled to disclose Confidential Information to any
tribunal or else stand liable for contempt or suffer other censure or
penalty, Employee may, without liability hereunder, disclose to such
tribunal only that portion of the Confidential Information which such
counsel advises Employee is legally required to be disclosed, provided
the Employee exercises his/her best efforts to preserve the
confidentiality of the Confidential Information, including, without
limitation, reliable assurance that the confidential treatment will be
accorded the Confidential Information by such tribunal.
n) Entire Agreement. This Agreement represents the entire understanding
and agreement among the parties with respect to the subject matter
hereof, and supersedes all other negotiations, understandings and
representations (if any) made by and among such parties.
IN WITNESS WHEREOF, the parties have duly set their hands to this Agreement,
effective as of the date stated above.
XXXXXX TECHNOLOGIES, INC. EMPLOYEE
/s/ Xxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxx
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DTI Authorized Signature Employee's Signature
1/8/99 Xxxxxxx X. Xxxx
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Date Employee's Printed Name
12-30-98
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Date
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SCHEDULE OF SEPARATE WORKS
The following are works that are not assigned by Section 4 of the Invention
Assignment and Confidentiality 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 with DTI.
DESCRIPTION: (If none, enter the word "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.
/s/ Xxxxxxx X. Xxxx 12-30-98
-------------------------------------------
Employee's Signature Date
Xxxxxxx X. Xxxx
-------------------------
Employee's Printed Name
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EXHIBIT B TO EMPLOYMENT AGREEMENT
NON-SOLICITATION AND NON-COMPETE AGREEMENT
THIS NON-SOLICITATION AND NON-COMPETE AGREEMENT ("Agreement") made as of this
15th day of December, 1998 by and between Xxxxxx Technologies, Inc., a Florida
corporation with its principal office at 000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxx
Xxxxx, Xxxxxxx 00000 (hereinafter called "Xxxxxx") and Xxxxxxx X. Xxxx
(hereinafter "Employee").
WHEREAS, Employee is accepting employment with Xxxxxx; and
WHEREAS, the parties wish to reflect their agreement as to Employee's
promises regarding Employee's solicitation and competition which have induced
Xxxxxx to employ Employee at Employee's status with Xxxxxx, as well as Daleen's
extension of certain severance benefits to Employee.
NOW, THEREFORE, Employee and Xxxxxx (hereinafter sometimes referred to
collectively as the "parties" and separately as a "party") in consideration of
Employee's employment with Xxxxxx and the covenants hereinafter set forth and
other good and valuable consideration and intending to be legally bound hereby,
agree as follows:
1. Non-solicitation. Employee will not, at any time while employed by
Xxxxxx and for one (1) year after the termination of Employee's employment with
Xxxxxx for any reason whatsoever, directly or indirectly (by assisting or
suggesting to another, or otherwise) solicit otherwise attempt to induce or
accept the initiative of another in such regard, alone or by combining or
conspiring with anyone, any employees, officers, directors, agents,
consultants, representatives, contractors, suppliers, distributors, customers
or other business contacts (collectively, "Business Affiliates") of Xxxxxx to
terminate or modify its position as an employee, officer, director, agent,
consultant, representative, contractor, supplier, distributor, customer or
business contact with Xxxxxx or to compete against Xxxxxx.
2. Non-competition. (a) Employee shall not while employed by Xxxxxx, and
after the termination of said employment for any reason whatsoever for the time
period after such termination described in paragraph (c) below (the "No-Compete
Period"), directly or indirectly, as owner, officer, director, employee, agent,
lender, broker, investor, consultant or representative of any corporation or as
owner of any interest in, or as an employee, agent, consultant, partner,
affiliate or in any other capacity whatsoever or representative of any other
form of business association, sole proprietorship or partnership, conduct or be
related to any business in competition with any business of Xxxxxx now or in
the future, including without limitation, in the Billing and Customer Care
industry (herein referred to as the "Competitive Business") anywhere within the
territories, nor as to certain customers anywhere in the United States, both
listed on the "Territories and Customers" Exhibit to the Agreement, made a
part hereof, including without limitation, the solicitation of any customers,
who were at any time customers of Xxxxxx and in connection with a business
which is competitive with the Competitive Business except that such competitive
activity will be permitted as to business solicitation of and competition with
Xxxxxx
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as to any entity listed on an Exhibit to this Agreement made a part hereof
identified as a "No-Compete Exception", if any, subject to paragraph (c) below.
(b) In addition to, and not in limitation of the other provisions hereof
or of any other Agreement between Employee and Xxxxxx, Employee shall not at
any time in any manner other than in the ordinary course of good faith
competition only as permitted herein interfere with, disturb, disrupt, decrease
or otherwise jeopardize the business of Xxxxxx or do or permit to be done
anything which may tend to take away or diminish the trade, business or good
will of Xxxxxx or give to any person the benefit or advantage of Company's or
Seller's methods of operation, advertising, publicity, training, business
customers or accounts, or any other information relating or useful to Daleen's
business.
(c) The No-Compete Period shall increase depending upon the duration of
Employee's employment with Xxxxxx as follows:
i) If Employee has completed one hundred eighty (180) days or less of
employment there will be a six (6) month No-Compete Period;
ii) If Employee has completed more than one hundred eighty (180) days of
employment the No-Compete Period will be one (1) year;
DTI reserves the right to waive the Non-Compete Period at its option in
return for the payment of the severance benefit described in Section 4.
3. Legal Effect. The foregoing covenants of Employee shall be deemed
severable, and the invalidity of any covenant shall not affect the validity or
enforceability of any other covenant. The existence of any claim or cause of
action by Employee against Xxxxxx predicated on this Agreement or otherwise,
shall not constitute a defense to the enforcement by Xxxxxx of these covenants.
Daleen's failure to object to any conduct in violation of this Agreement shall
not be deemed a waiver by Xxxxxx, but Xxxxxx may, if it wishes, specifically
waive any part or all of those covenants to the extent that such waiver is set
forth in writing duly authorized by Daleen's Board of Directors.
Employee acknowledges and confirms that the length of the term and
geographical restrictions contained herein are fair and reasonable and not the
result of overreaching, duress or coercion of any kind. Employee further
acknowledges and confirms that his or her full, uninhibited and faithful
observance of each of the covenants contained in this Agreement will not cause
him or her any undue hardship, financial or otherwise, and that enforcement of
each of the covenants contained in this Agreement will not impair his or her
ability to obtain employment commensurate with his or her abilities and on
terms fully acceptable to him or her or otherwise to obtain income required for
the comfortable support of him or her and his or her family and the
satisfaction of the needs of his or her creditors. Employee acknowledges and
confirms that his or her special knowledge of the business of Xxxxxx is such as
would cause Xxxxxx serious injury and loss if he or she were to use such
ability and knowledge to the benefit of a competitor or were to compete with
Xxxxxx.
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In the event that any court shall finally hold that the time or territory
or any other provision stated in this Agreement constitutes an unreasonable
restriction upon Employee, Employee hereby expressly agrees that the provisions
of this Agreement shall not be rendered void, but shall apply as to time and
territory or to such other extent as such court may judicially determine or
indicate constitutes a reasonable restriction under the circumstances involved.
Employee hereby agrees that in the event of the violation by him or her of any
of the provisions of this Agreement, Xxxxxx will be entitled if it so elects,
to institute and prosecute proceedings at law or in equity to obtain damages
with respect to such violation or to enforce the specific performance of this
Agreement by Employee or to enjoin Employee from engaging in any activity in
violation hereof without any requirement on the part of Xxxxxx to post any bond.
In the event Xxxxxx should bring any legal action or other proceeding for
the enforcement of this Agreement, the time for calculating the No-Compete
Period or terms of any other restriction herein shall not include the period of
time commencing with the filing of legal action or other proceeding to enforce
the terms of this Agreement through the date of final judgment or final
resolution, including all appeals, if any, of such legal action or other
proceeding.
4. Severance. In further consideration of the entering into of this
Agreement by Employee, Xxxxxx agrees to entitle Employee to a severance pay
benefit based upon base salary dependent upon the duration of Employee's
employment with Xxxxxx, determined as follows:
a) One hundred and eighty days (180) or less of employment will result
in a severance benefit equal to six (6) months salary subject to a
six (6) month Non-Compete period;
b) Employment beyond one hundred and eighty days (180) of employment
will result in a severance benefit equal to twelve (12) months salary
subject to a twelve (12) month Non-Compete period;
c) The Company reserves the right to waive the Non-Compete period. 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 has
been waived.
Xxxxxx shall pay the foregoing severance benefit in accordance with payroll
policies in effect at the time of separation. 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 2(c). 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.
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5. Miscellaneous Provisions.
The provisions of this Agreement may not be amended, supplemented, waived
or changed orally, but only by a writing signed by the party as to whom
enforcement of any such amendment, supplement, waiver or modification is sought
and making specific reference to this Agreement. All of the terms and provisions
of this Agreement, whether so expressed or not, shall be binding upon, inure to
the benefit of, and be enforceable by the parties and their respective
administrators, executors, legal representatives, heirs, successors and
permitted assigns. The headings contained in this Agreement are for convenience
of reference only, are not to be considered a part hereof and shall not limit or
otherwise affect in any way the meaning or interpretation of this Agreement. The
failure or delay of any party at any time to require performance by another
party of any provision of this Agreement, even if known, shall not affect the
right of such party to require performance of that provision or to exercise any
right, power or remedy hereunder. Any waiver by any party of any breach of any
provision of this Agreement should not be construed as a waiver of any
continuing or succeeding breach of such provision, a waiver of the provision
itself, or a waiver of any right, power or remedy under this Agreement. No
notice to or demand on any party in any case shall, of itself, entitle such
party to any other or further notice or demand in similar or other
circumstances.
The parties acknowledge that a substantial portion of negotiations,
anticipated performance and execution of this Agreement occurred or shall occur
in Palm Beach County, Florida, and that, therefore, without limiting the
jurisdiction or venue of any other federal or state courts, each of the parties
irrevocably and unconditionally (a) agrees that any suit, action or legal
proceeding arising out of or relating to this Agreement may be brought in the
courts of record of the State of Florida in Palm Beach County or the District
Court of the United States, Southern District of Florida; (b) consents to the
jurisdiction of each such court in any suit, action or proceeding; (c) waives
any objection which it may have to the laying of venue of any such suit, action
or proceeding in any of such courts; and (d) agrees that service of any court
paper may be effected on such party by mail, as provided in this Agreement, or
in such other manner as may be provided under applicable laws or court rules in
said state. Except as otherwise expressly provided herein, no remedy herein
conferred upon any party is intended to be exclusive of any other remedy, and
each and every such remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute or otherwise. No single or partial exercise by any party of any
right, power or remedy hereunder shall preclude any other or further exercise
thereof. This Agreement and all transactions contemplated by this Agreement
shall be governed by, and construed and enforced in accordance with, the
internal laws of the State of Florida without regard to principles of conflicts
of laws. Any time period provided for herein which shall end on a Saturday,
Sunday or legal holiday shall extend to 5:00 p.m. of the next full business day.
This Agreement represents the entire understanding and agreement amount the
parties with respect to the subject matter hereof, and supersedes all other
negotiations, understandings and representations (if any) made by and among such
parties.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
written above.
Xxxxxx Technologies, Inc.
/s/ Xxxxxxx X. Xxxx /s/ X.X. Xxxxx
-------------------- -------------------------
Employee's Signature Its: President/COO
/s/ Xxxxxxx X. Xxxx /s/ Xxxxx Xxxxx
-------------------- --------------------
Printed Name Printed Name
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NO-COMPETE EXCEPTIONS
Exhibit to Non-Solicitation and Non-Compete Agreement of Xxxxxxx X. Xxxx.
NONE.
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TERRITORIES AND CUSTOMERS
Exhibit to Non-Solicitation and Non-Compete Agreement of Xxxxxxx X. Xxxx.
THE UNITED STATES.
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