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EXHIBIT 10.1
December 1, 1994 Xxxxx Xxxxxx Employment Agreement
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EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("this Agreement") is made and effective as
of this 1st day of December, 1994, by and between XXXXXX TECHNOLOGIES, INC., an
Illinois corporation located at 000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx,
00000 ("Company" or "Employee"), and XXXXX XXXXXX, residing at 0000 Xxxxxxxxx
Xxxx., Xxxx Xxxxx, Xxxxxxx 00000 ("Employee").
WITNESSETH:
WHEREAS, Employee is the Company founder and has since inception been a
loyal and devoted employee;
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
President, Chairman of the Board of Directors of the Company ("Board") and Chief
Executive Officer, 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 five
(5) years ("Employment Period"). The Employment Period shall be automatically
extended for additional three year periods unless either party notifies the
other in writing that the Employment Period will not be renewed at least six (6)
months prior to the end of the initial term or six (6) months prior to the end
of any such three year renewal.
3. Salary and Base Compensation. Employee shall be entitled to
receive salary during the Employment Period at the rate of:
One Hundred Twenty-Five Thousand and 00/100 Dollars ($125,000.00) per annum
initially,
One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00) per annum
effective April 15, 1995,
One Hundred Seventy-Five Thousand and 00/100 Dollars ($175,000.00) per annum
effective January 1, 1996, Two
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Hundred Thousand and 00/100 Dollars ($200,000.00) per annum effective July 1,
1996,
Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) per annum effective
January 1, 1997,
The Employee's salary shall increase Fifty Thousand Dollars ($50,000.00) per
annum every six months thereafter starting July 1, 1997 and continuing through
the term of this agreement (the "Base Salary").
In addition to the Base Salary paid to Employee during the Employment Period,
Employee shall be entitled to receive the Benefits, Profits Bonus, Revenue Bonus
and Stock Options (as those terms are hereinafter defined) during the Employment
Period. The Base Salary shall be payable Bi-Weekly 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 Company,
which types of expenditures shall be determined and approved by the Company, and
further provided that:
(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 (determined without regard to statutory limitations) 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.
(c) Employee agrees that, if at any time, any payment
made to Employee by Company, whether for salary or as a business expense
reimbursement, shall be disallowed in whole or in part as a deductible expense
by the appropriate taxing authorities, Employee shall reimburse Company to the
full extent of such disallowance.
5. Car Allowance. During the Employment Period, Employee shall be
entitled to the exclusive, full-time use of a four-door luxury automobile or a
car allowance of up to $700.00 per month (increased by the Consumer Price Index
increase on each anniversary of this Agreement) in accordance with Company's
normal automobile allowance payment practices, as in existence from time to
time.
6. Benefits. Employee shall be entitled to receive during the
entire Employment Period the following benefits herein below described
("Benefits"). Employee agrees that the Base Salary, the Profits Bonus, the
Revenue Bonus, the Stock Option, and the Benefits and the other compensation
provided in accordance with this Agreement, are the sole and exclusive
compensation of Employee for his duties hereunder.
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December 1, 1994 Xxxxx Xxxxxx Employment Agreement
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(a) Continuing throughout the Employment Period
Employee shall receive all of the employee benefits including, without
limitation, health insurance, pension, disability, profit sharing and retirement
benefits, provided at any time by Company to any of its senior executive
employees.
7. Vacation. Employee shall be entitled to paid vacation in
accordance with the vacation policy of the Company in effect for senior
executives from time to time, in no event to be less than three (3) weeks per
calendar year.
8. Revenue and Profits Bonuses.
(a) During the Employment Period, Employee shall be paid, within
thirty (30) days after delivery of the Company's annual audited financial
statements for its fiscal year end, a bonus in cash equal to two percent (2%) of
the increase in total gross revenues of the Company including all subsidiaries
on a consolidated basis for the most recently ended fiscal year over the total
gross revenues for the Company as of the end of the immediately prior fiscal
year. For example, if total gross revenue for fiscal year "A" equals $2,100,000
and if total gross revenue for fiscal year "B" equals $3,100,000, the bonus
amount payable hereunder would be two percent (2%) of said $1,000,000
difference, in that case equal to $20,000 ("Revenue Bonus").
(b) Employee shall be paid, within thirty (30) days of the end of each
full calendar quarter during the Employment Period, a quarterly bonus equal to
five percent (5%) of the net pre-tax earnings of the Company including all
subsidiaries on a consolidated basis (the "Profits Bonus"). The term "net
pre-tax earnings" as used herein shall be determined by the Company's internal
financial statements and shall be subject at the Company's fiscal year end to
adjustment based upon the annual audit of the Company financial statements by
the Company's independent CPA firm in accordance with generally accepted
accounting principles.
(c) Notwithstanding anything to the contrary in this Agreement, the
Profits Bonus shall be payable only provided Employee is in the employ of
Company on the last day of the respective quarter for which such Profits Bonus
is being calculated. Employee shall be entitled to the Revenue Bonus on a
prorata basis for partial year calculations, based on full year results and
further payable in accordance with and subject to the normal payroll policies of
the Company with respect to similar forms of compensation, including without
limitation, being subject to all appropriate withholding taxes.
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(d) If the fiscal year of the Company is changed, the annual Revenue
Bonus shall be adjusted for the year in which the election is made and the next
fiscal year so that the calculation will have been made on an equitable basis
for comparable periods.
9. Stock Option. Employee shall be eligible to receive stock
options in accordance with the stock option plans adopted by the Company from
time to time or determined by the Board of Directors of the Company, in all
events annually within thirty (30) days of the end of the Company's fiscal year
in an amount not less than twenty five percent (25%) of the aggregate of all
stock options granted to all other employees of the Company during the most
recently ended fiscal year.
10. 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.
11. Compensation Review. The 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 a duly authorized officer of the Company, 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.
12. 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").
13. 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")
14. 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 except for payments for
service as a director equal to those payments, if any paid by the Company to its
other members of its Board of Directors, which the Company shall be obligated to
pay to employee also, if any.
15. Duties. During the Employment Period:
(a) Employee shall furnish all manner of services in
connection with his position as Chairman of the Board, President and Chief
Executive Officer or as otherwise designated by the President including, without
limitation, primary responsibility for management of the Company to
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carry out the policies and programs of the Board and as from time to time may be
delegated or assigned to him by the Board;
(b) Employee shall report directly to the Board 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 himself, and apply his best energy
and skill to the service of Company and the promotion of Company's interests,
and shall use his best efforts in the performance of his 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 contunie to
participate in the management and activities of any company which the Employee
is currently a Fifty percent (50%) or greater stockholder and the 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 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, other than a business which the Employee is currently a
Fifty percent (50%) or greater stockholder, 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.
16. Authority to Contract. Employee shall have authority to enter
into contracts binding upon Employer and believed in good faith by Employee to
be in the best interest of the Company.
17. Termination.
(a) Employer shall have the right to terminate the Employment Period
only for substantial cause or if Employee becomes permanently disabled.
(b) As used in this Section 17, the term "substantial cause" shall
mean:
(i) the commission by Employee of any act of fraud,
theft, or embezzlement against Employer; or
(ii) Any material breach by Employee of this Agreement,
provided that
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December 1, 1994 Xxxxx Xxxxxx Employment Agreement
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Employer first shall have delivered to Employee
written notice of the alleged breach, specifying the
exact nature of the breach in detail, and provided,
further, that Employee shall have failed to cure or
substantially mitigate such breach within thirty days
after receiving notice thereof.
(c) For purposes of this Section 17, the term "permanently disabled"
or "permanent disability" shall mean a physical or mental incapacity of Employee
which renders Employee unable to perform his duties hereunder and which shall
continue for nine consecutive months or for twelve months during any period of
eighteen consecutive months.
(d) If Employer terminates the Employment Period for death or
substantial cause, the termination shall be effective immediately upon
Employee's receipt of written notice of termination from Employer. If Employer
terminates the Employment Period by reason of the permanent disability of
Employee, the termination shall be effective ninety days after the delivery by
Employer of written notice of termination from Employer.
18. Severance Pay. If Employer terminates the Employment Period
for any reason other than substantial cause, Employee shall be entitled to
severance pay from Employer in an amount equal to the lesser of (a) three years'
base salary, at the rate in effect at the time of termination; or (b) the base
salary due to Employee for the remaining term of this Agreement (but not less
than two full years' salary), determined at the rate of Employee's base salary
at the date of termination.
19. Change in Control.
(a) For the purposes of this Agreement, a "change in control of
Employer" shall mean the occurrence of any of the following events:
(i) any "person" (as that term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as
amended ("Exchange Act")),who holds less than 20% of
the combined voting power of the securities of the
Employer, becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of Employer representing
twenty-five percent or more of the combined voting
power of the securities of Employer then outstanding;
or
(ii) during any period of twenty-four (24) consecutive
months, individuals who at the beginning of such
period constitute all members of the Board of
Directors of Employer shall cease, for any reason, to
constitute at least a majority of the Directors,
unless the election of each Director who was not a
Director at the beginning of the period was approved
by a vote of at least two-thirds of the Directors
then still in office who were Directors at the
beginning of the period; or
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(iii) Employer shall consolidate or merge with another
company and Employer is not the continuing or
surviving corporation, or shares of Employer's common
stock are converted into cash, securities, or other
property, other than a merger of Employer in which
the holders of the Employer's common stock
immediately prior to the merger have the same
proportionate ownership of common stock of the
surviving corporation immediately after the merger as
they had in Employer immediately prior to the merger;
or
(iv) Employer shall sell, lease, exchange, or otherwise
transfer all or substantially all of its assets (in
one transaction or in a series of related
transactions); or
(v) the stockholders of Employer shall approve a plan or
proposal for the liquidation or dissolution of
Employer.
(b) Employee shall have the right to resign from the employ of
Employer at any time after a change in control of Employer. If Employee resigns
within two years of such a change in control, he shall be entitled to the
payment provided in subsection (c) of this Section 19.
(c) If Employee resigns from the employ of Employer within two
years of a change in control of Employer, of if Employer terminates this
Agreement after a change in control of Employer for any reason other than
substantial cause, then the following provisions of this Section 19 shall apply:
(i) in lieu of any further salary payments to Employee
for periods subsequent to the date of the termination
of his employment, Employer shall pay to Employee, in
a lump sum and in cash, as liquidated damages, an
amount equal to the sum of:
(A) the greater of (I) three years' base salary,
or (II) the base salary due to Employee for
the remaining term of this Agreement, in
either case at the greater of the rate in
effect at the date of the change in control
of Employer or at the date of termination;
plus
(B) an amount equal to a multiple of two (2)
times the largest total of Revenue and
Profits Bonuses previously paid in any one
year by Employer to Employee pursuant to the
provisions of Section IV(c) hereof.
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(ii) Employer shall maintain in full force and effect
until the expiration of the term of this Agreement,
at its expense, all group insurance and other
employee benefit plans (including, without
limitation, qualified profit-sharing and retirement
type plans) in which Employee was entitled to
participate prior to the date of his termination,
provided that Employee's continued participation is
possible under the terms of such plans. If Employee's
continued participation under such plans is not
possible, Employer shall arrange to provide Employee
with alternative benefits substantially similar to
those provided under the group insurance and employee
benefit plans of Employer in which Employee was
participating prior to the date of his termination.
Any payment due to Employee pursuant to the provisions of subsection
(c) of this Section 19 shall be paid to him by Employer on the fifth day
following the date of Employee's termination.
(d) For purposes of the remaining provisions of this Section 19,
the following terms shall have the following meanings:
(i) The term "Code" shall mean the Internal Revenue Code
of 1986, as amended; and any references to sections
thereof shall include any successor provisions of the
Code or of any future income tax laws enacted as
successors to the Code;
(ii) The term "Excise Tax" shall mean the tax imposed by
Section 4999 of the Code;
(iii) The term "Gross-Up Payment" shall mean the payment
referred to in subsection (e) of this Section 19.
(iv) The term "Section 19 Payments" shall mean all
payments to which Employee shall become entitled
under the provisions of this Section 19.
(v) The term "Other Payments" shall mean any payments or
benefits, other than the Section 19 Payments,
received or to be received by Employee in connection
with a change in control of Employer, or in
connection with Employee's termination of employment,
and which are payable pursuant to the terms of any
plan, arrangement, or agreement (other than this
Agreement) with Employer, with Employer's successors,
with any person whose actions result in a change in
control of Employer, or with any person affiliated
either with Employer or with any person whose actions
result in a change in control of Employer.
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December 1, 1994 Xxxxx Xxxxxx Employment Agreement
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(e) If Employee becomes entitled to any payments under this
Section 19, and if the Section 19 Payments or any Other Payments will be subject
to the Excise Tax, then Employer shall pay to Employee an additional sum (the
"Gross-Up Payment") sufficient to provide Employee with a net amount equal to
the sum of the Section 19 and the Other Payments, after deduction of any Excise
Tax on such Payments and after deduction of any federal, state, or local income
taxes, and of any Excise Tax, upon the Gross-Up Payment. The amount due from
Employer under this Section 19(e) shall be paid to Employee within five days of
the date of Employee's termination.
(f) The following rules shall apply for the purpose of determining
whether any of the Section 19 Payments or any of the Other Payments will be
subject to the Excise Tax and for the purpose of computing the amount of any
such Excise Tax:
(i) All of the Other Payments shall be treated as
"parachute payments," within the meaning of Section
280G(b)(2) of the Code, and all "excess parachute
payments" within the meaning of Section 280G(b)(1) of
the Code shall be treated as being subject to the
Excise Tax; and
(ii) The value of any benefits payable to Employee in any
form other than cash, and the value of any deferred
payments or benefits due to Employee from Employer,
shall be determined by Employer's independent
auditors in accordance with the provisions of Section
280G(d)(3) of the Code.
(g) For purpose of determining the amount of the Gross-Up Payment:
(i) Employee shall be deemed to be subject to state and
local income taxes at the highest marginal rate of
taxation in the state and locality of Employee's
principal residence on the date of his termination;
and
(ii) Employee shall be deemed to be subject to federal
income taxes at the highest marginal rate of federal
income taxation in the calendar year in which the
Gross-Up Payment is due (net of the maximum reduction
in federal income taxes which Employee can obtain
from deduction of the state and local taxes described
in the preceding clause).
(h) If the Excise Tax is determined to exceed the amount taken
into account under the provisions of this Section 19 at the time of the
termination of Employee (including by reason of any payment, the existence or
the amount of which could not be determined at the time of the Gross-Up
Payment), Employer shall make an additional Gross-Up Payment in respect of such
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excess and in respect of any interest payable with respect to such excess, at
the time that the amount of such excess is finally determined.
(i) Employee shall not be required to mitigate the amount
of any payment provided for in this Section 19 by
seeking other employment or otherwise; and the amount
of any payment provided for in this Section 19 shall
not be reduced by any compensation earned by
Employee, either as the result of employment by any
other employer after the date of his termination of
employment with Employer or otherwise.
20. 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
containing the names, addresses, and other information with regard to patients
or potential patients of the Employer which have been served or treated by the
Employee.
21. 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.
22. 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.
23. Assignments. Employee shall not assign his rights and/or
obligations hereunder.
24. 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.
25. 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.
26. Survival. Notwithstanding anything to the contrary herein, the
provisions of Sections 11 through 29 (inclusive) shall survive and remain in
effect in accordance with their respective terms in the event the employment is
terminated.
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27. 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.
28. 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.
29. 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.
30. 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 the courts of record of the State of Florida in Palm
Beach County or the court of the United States, Southern District of Florida;
(b) consents to the jurisdiction of each such court in any such suit, action or
proceeding; (c) waives any objection which it may have to the laying of venue of
any such suit, action or proceeding in any of such courts; and (d) agrees that
service of any court paper may be effected on such party by mail, as provided in
this Agreement, or in such other manner as may be provided under applicable laws
or court rules in said state.
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31. 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.
32. Employee Representations, Warranties, and Acknowledgments.
Employee represents and warrants to Company that he is fully empowered to enter
and perform his obligations under this Agreement and, without limitation, that
he is under no restrictive covenants to any person or entity that will be
violated by his entering into and performing this Agreement, and that this
Agreement constitutes the valid and legally binding obligation of Employee
enforceable in accordance with its terms. The execution and delivery of this
Agreement by Employee has been duly authorized by all necessary action. Employee
shall indemnify 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.
33. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXX TECHNOLOGIES, INC. EMPLOYEE
/s/ Xxxxx Xxxxxx
------------------------ -----------------------------
Xxxxx Xxxxxx Xxxxx Xxxxxx
President/CEO/Chairman of the Board
12/1/94
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Dated Dated
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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 OF EMPLOYMENT AGREEMENT
INVENTION ASSIGNMENT AND CONFIDENTIALITY AGREEMENT
THIS AGREEMENT is entered into this 1st day of December, 1994, by and
between Xxxxxx Technologies, Inc. (DTI) and Xxxxx Xxxxxx (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.
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2. Employee shall not disclose to DTI, use in DTI's business, or cause DTI
to use any information or material which is confidential to any third
party unless DTI has a written agreement with the third party allowing
DTI to receive and use the confidential information or materials.
Employee will not incorporate into Employee's work any material which
is subject to the copyrights of any third party unless DTI has the
right to copy and incorporate such copyrighted material.
3. When Employee is no longer employed or engaged by DTI, Employee shall
return to DTI all DTI property, and any and all third party property,
including all Confidential Information, drawings, computer programs or
copies thereof, documentation, notebooks and notes, reports and any
other materials on electronic or printed media.
4. Employee hereby grants, transfers and assigns to DTI all of his rights,
title and interest, if any, in any and all Developments, including
rights to translation and reproductions in all forms or formats and the
copyrights and patent rights thereto, if any, and he agrees that DTI
may copyright said materials in DTI's name and secure renewal, reissues
and extensions of such copyrights for such 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 consultant during Employee's employment
or engagement, whether or not subject to patent, copyright or other
forms of protection that:
a. Are related to the actual or anticipated business,
research or Development of DTI; and/or
b. Are suggested by or result from any task assigned to
Employee or work performed by Employee for or on
behalf of DTI.
Employee acknowledges that the copyrights in Developments created by
Employee in the scope of Employee's employment or engagement, belong to
DTI by operation of law, or may belong to a party engaged by DTI by
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.
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December 1, 1994 Xxxxx Xxxxxx Employment Agreement
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At all times hereafter, Employee agrees to assist DTI in obtaining
patents or copyrights on any Developments assigned to DTI that DTI, in
its sole discretion, seeks to patent or copyright. Employee also agrees
to sign all documents, and do all things necessary to obtain such
patents or copyrights, to further assign them to DTI, and to reasonably
protect them and DTI against infringement by other parties at DTI
expense with DTI prior approval.
Employee irrevocably appoints any DTI-selected designee to act, at all
time hereafter, as his agent and attorney-in-fact to perform all acts
necessary to obtain patents and/or copyrights as required by this
Agreement if Employee (i) refuses to perform those acts or (ii) is
unavailable, within the meaning of the United States Patent and
Copyright laws. It is expressly intended by Employee that the foregoing
power of attorney is coupled with an interest.
Employee shall keep complete, accurate, and authentic information and
records on all Developments in the manner and form reasonably requested
by DTI. Such information and records, and all copies thereof, shall be
the property of DTI as to any Developments assigned DTI. Employee
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.
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Xxxxxx Technologies, Inc. Proprietary and Confidential
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December 1, 1994 Xxxxx Xxxxxx Employment Agreement
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7. DTI, its subsidiaries, licensees, successors or assigns, (direct or
indirect) are not required to designate Employee as author of any
Development when such Development is distributed publicly or otherwise.
Employee waives and releases, to the extent permitted by law, all
Employee's rights to such designation and any rights concerning future
modifications of such Developments.
8. Rights, assignments, and representations made or granted by Employee in
this Agreement, are assignable by DTI and are for the benefit of DTI's
successors, assigns, and parties contracted with DTI.
9. Miscellaneous Provisions.
a) Amendments. The provisions of this Agreement may not be
amended, supplemented, waived or changed orally, but only by a
writing signed by the party as to whom enforcement of any such
amendment, supplement, waiver or modification is sought and
making specific reference to this Agreement.
b) Further Assurances. The parties hereby agree from time to time
to execute and deliver such further and other transfers,
assignments and documents and do all matters and things which
may be convenient or necessary to more effectively and
completely carry out the intentions of this Agreement.
c) Brokers. Each of the parties represents and warrants that such
party has dealt with no broker or finder in connection with
any of the transactions contemplated by this Agreement, and,
insofar as such party knows, no broker or other person is
entitled to any commission 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.
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Xxxxxx Technologies, Inc. Proprietary and Confidential
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December 1, 1994 Xxxxx Xxxxxx Employment Agreement
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f) Severability. If any provision of this Agreement or any other
Agreement entered into pursuant hereto is contrary to,
prohibited by or deemed invalid under applicable law or
regulation, such provision shall be inapplicable and deemed
omitted to the extent so contrary, prohibited or invalid, but
the remainder hereof shall not be invalidated thereby and
shall be given full force and effect so far as possible. If
any provision of this Agreement may be construed in two or
more ways, one of which would render the provision invalid or
otherwise voidable or unenforceable and another of which would
render the provision valid and enforceable, such provision
shall have the meaning which renders it valid and enforceable.
g) Survival. All covenants, agreements, representations and
warranties made herein or otherwise made in writing by any
party pursuant hereto shall survive the execution and delivery
of this Agreement and the termination of employment or
engagement of Employee.
h) Waivers. The failure or delay of any party at any time to
require performance by another party of any provision of this
Agreement, even if known, shall not affect the right of such
party to require performance of that provision or to exercise
any right, power or remedy hereunder. Any waiver by any party
of any breach of any provision of this Agreement should not be
construed as a waiver of any continuing or succeeding breach
of such provision, a waiver of the provision itself, or a
waiver of any right, power or remedy under this Agreement. No
notice to or demand on any party in any case shall, of itself,
entitle such party to any other or further notice or demand in
similar or other circumstances.
i) Specific Performance. Each of the parties acknowledges that
the parties will be irreparably 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
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December 1, 1994 Xxxxx Xxxxxx Employment Agreement
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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.
m) Preparation of Agreement. This Agreement shall not be
construed more strongly against any party regardless of who is
responsible for its preparation. The parties acknowledge each
contributed and is equally responsible for its preparation.
n) Entire Agreement. This Agreement represents the entire
understanding and agreement among the parties with respect to
the subject matter hereof, and supersedes all other
negotiations, understandings and representations (if any) made
by and among such parties.
IN WITNESS WHEREOF, the parties have duly set their hands to this Agreement,
effective as of the date stated above.
XXXXXX TECHNOLOGIES, INC. EMPLOYEE
/s/ Xxxxx Xxxxxx
---------------------------- ------------------------------
Xxxxx Xxxxxx Xxxxx Xxxxxx
President/CEO/Chairman of the Board
12/1/94
---------------------------- ------------------------------
Date Date
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Xxxxxx Technologies, Inc. Proprietary and Confidential
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December 1, 1994 Xxxxx Xxxxxx Employment Agreement
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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 1st day of December, 1994 by and between Xxxxxx Technologies, Inc., an
Illinois corporation with its principal office at 000 Xxxxx Xxxxx Xxxx, Xxxxx
000, Xxxx Xxxxx, Xxxxxxx 00000 (hereinafter called "Xxxxxx") and Xxxxx Xxxxxx, a
resident of 0000 Xxxxxxxxx Xxxx., Xxxx Xxxxx, Xxxxxxx 00000 (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 one (1) year after such termination (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, the licensing, development
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Xxxxxx Technologies, Inc. Proprietary and Confidential
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December 1, 1994 Xxxxx Xxxxxx Employment Agreement
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or sale of computer software or computer consulting services (herein referred to
as the "Competitive Business") anywhere within the United States, 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.
(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.
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 full, uninhibited and faithful observance of
each of the covenants contained in this Agreement will not cause him any undue
hardship, financial or otherwise, and that enforcement of each of the covenants
contained in this Agreement will not impair his ability to obtain employment
commensurate with his abilities and on terms fully acceptable to him or
otherwise to obtain income required for the comfortable support of him and his
family and the satisfaction of the needs of his creditors. Employee acknowledges
and confirms that his special knowledge of the business of Xxxxxx is such as
would cause Xxxxxx serious injury and loss if he were to use such ability and
knowledge to the benefit of a competitor or were to compete with Xxxxxx.
In the event that any court shall finally hold that the time or
territory or any other provision stated in this Agreement constitutes an
unreasonable restriction upon Employee, Employee hereby expressly agrees that
the provisions of this Agreement shall not be rendered void, but shall apply as
to time and territory or to such other extent as such court may judicially
determine or indicate constitutes a reasonable restriction under the
circumstances involved. Employee hereby agrees that in the event of the
violation by him of any of the provisions of this
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Xxxxxx Technologies, Inc. Proprietary and Confidential
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December 1, 1994 Xxxxx Xxxxxx Employment Agreement
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Agreement, Xxxxxx will be entitled if it so elects, to institute and prosecute
proceedings at law or in equity to obtain damages with respect to such violation
or to enforce the specific performance of this Agreement by Employee or to
enjoin Employee from engaging in any activity in violation hereof without any
requirement on the part of Xxxxxx to post any bond.
In the event Xxxxxx should bring any legal action or other proceeding
for the enforcement of this Agreement, the time for calculating the No-Compete
Period or terms of any other restriction herein shall not include the period of
time commencing with the filing of legal action or other proceeding to enforce
the terms of this Agreement through the date of final judgment or final
resolution, including all appeals, if any, of such legal action or other
proceeding.
4. Miscellaneous Provisions.
The provisions of this Agreement may not be amended, supplemented,
waived or changed orally, but only by a writing signed by the party as to whom
enforcement of any such amendment, supplement, waiver or modification is sought
and making specific reference to this Agreement. All of the terms and provisions
of this Agreement, whether so expressed or not, shall be binding upon, inure to
the benefit of, and be enforceable by the parties and their respective
administrators, executors, legal representatives, heirs, successors and
permitted assigns. The headings contained in this Agreement are for convenience
of reference only, are not to be considered a part hereof and shall not limit or
otherwise affect in any way the meaning or interpretation of this Agreement. The
failure or delay of any party at any time to require performance by another
party of any provision of this Agreement, even if known, shall not affect the
right of such party to require performance of that provision or to exercise any
right, power or remedy hereunder. Any waiver by any party of any breach of any
provision of this Agreement should not be construed as a waiver of any
continuing or succeeding breach of such provision, a waiver of the provision
itself, or a waiver of any right, power or remedy under this Agreement, No
notice to or demand on any party in any case shall, of itself, entitle such
party to any other or further notice or demand in similar or other
circumstances.
The parties acknowledge that a substantial portion of negotiations,
anticipated performance and execution of this Agreement occurred or shall occur
in Palm Beach County, Florida, and that, therefore, without limiting the
jurisdiction or venue of any other federal or state courts, each of the parties
irrevocably and unconditionally (a) agrees that any suit, action or legal
proceeding arising out of or relating to this Agreement may be brought in the
courts of record of the State of Florida in Palm Beach County or the District
Court of the United States, Southern District of Florida; (b) consents to the
jurisdiction of each such court in any suit, action or proceeding; (c) waives
any objection which it may have to the laying of venue of any such suit, action
or proceeding in any of such courts; and (d) agrees that service of any court
paper may be effected on such party by mail, as provided in this Agreement, or
in such other manner as may be provided under applicable laws or court rules in
said state. Except as otherwise
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Xxxxxx Technologies, Inc. Proprietary and Confidential
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December 1, 1994 Xxxxx Xxxxxx Employment Agreement
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expressly provided herein, no remedy herein conferred upon any party is intended
to be exclusive of any other remedy, and each and every such remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute or otherwise. No single
or partial exercise by any party of any right, power or remedy hereunder shall
preclude any other or further exercise thereof. This Agreement and all
transactions contemplated by this Agreement shall be governed by, and construed
and enforced in accordance with, the internal laws of the State of Florida
without regard to principles of conflicts of laws. This Agreement shall not be
construed more strongly against any party regardless of who is responsible for
its preparation. The parties acknowledge each contributed and is equally
responsible for its preparation. Any time period provided for herein which shall
end on a Saturday, Sunday or legal holiday shall 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date written above.
EMPLOYEE XXXXXX TECHNOLOGIES, INC.
/s/ Xxxxx Xxxxxx
------------------------- -----------------------------------
Xxxxx Xxxxxx Xxxxx Xxxxxx
President/CEO/Chairman of the Board
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Xxxxxx Technologies, Inc. Proprietary and Confidential
