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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Agreement is made as of the 17th day of July, 2001 between Novo
Networks Operating Corp., a Delaware corporation, with offices at 000 Xxxxxxxx
Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000 (the "Company"), and Xxxxxx X. Xxxxxxxx,
an individual residing in the State of Texas (the "Employee").
RECITAL
WHEREAS, the Company desires to secure the services and employment of
the Employee on behalf of the Company, and the Employee desires to enter into
employment with the Company, upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound
hereby, agree as follows:
1. Employment. The Company hereby employs the Employee as Chief
Executive Officer of the Company, and the Employee accepts such employment for
the term of employment specified in Section 3 below. Except with respect to
AxisTel Communications, Inc., which shall be effective on July 27, 2001,
effective immediately and continuing during the Employment Term (as defined
below), the Employee shall serve as Chief Executive Officer of the Company,
e.Volve Technology Group, Inc., Novo Networks Global Services, Inc., and Novo
Networks International Services, Inc. (collectively, the "Companies"),
performing such duties as shall be reasonably required of such an employee of
the Companies, and shall have such other powers and perform such other
additional executive duties as may from time to time be assigned to him by the
Board of Directors of the Companies. The Company acknowledges that the
Employee's primary place of business shall be Dallas, Texas.
2. Performance. The Employee will serve the Companies faithfully
and to the best of his ability and will devote substantially all of his time,
energy, experience and talents during regular business hours and as otherwise
reasonably necessary to such employment, to the exclusion of all other business
activities.
3. Employment Term. The employment term shall begin on the date
of this Agreement and continue until and as set forth on Schedule 3, unless
earlier terminated pursuant to Section 6 below (the "Employment Term").
4. Compensation.
(a) Salary. During the Employment Term, the Company shall pay the
Employee the base salary set forth on Schedule 4(a), with such increases
thereto as shall be in the sole discretion of the Board of Directors of the
Company. The base salary shall be payable in accordance with current Company
procedures and shall be subject to applicable withholding for taxes and the
base salary shall not be decreased by any amount or for any reason other than
pursuant to Section 7.
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(b) Medical and Dental Health and Other Benefits. During the
Employment Term, the Employee shall be entitled to medical and dental health
and other benefits in accordance with the current Company procedures with
respect to its executive level employees.
(c) Vacation; Sick Leave. During the Employment Term, the
Employee shall be entitled to up to one (1) week of vacation and shall be
entitled to sick leave in accordance with the current Company procedures with
respect to its executive level employees.
5. Expenses. The Employee shall be reimbursed by the Company for
all reasonable expenses incurred by him in connection with the performance of
his duties hereunder in accordance with policies established by the Board of
Directors of the Company from time to time and upon receipt of appropriate
documentation.
6. Termination. The employment of the Employee hereunder shall
automatically terminate at the end of the Employment Term. The employment of
the Employee hereunder may also be terminated prior to the end of the
Employment Term under the following circumstances:
(a) Death or Disability. The Employment Term shall terminate upon
the death or Disability of the Employee. For purposes of this Agreement,
"Disability" occurs if the Employee is unable to perform his duties, pursuant
to this Agreement, on a full-time basis because of mental or physical
incapacity, including, without limitation, alcoholism or drug abuse, which
requires a leave of absence in excess of thirty (30) consecutive days. In the
event the Employee is a "Qualified Individual with a Disability," as defined in
the Americans with Disabilities Act, the Company shall not terminate the
Employee's employment hereunder if the Employee is able to perform the
essential functions of the Employee's job with reasonable accommodation from
the Company.
(b) With "Cause." For purposes of this Agreement, the Company
shall have "Cause" to terminate the Employee's employment hereunder upon the
occurrence of any of the following: (i) embezzlement, theft or other
misappropriation of any property of the Company or any of its subsidiaries by
the Employee, (ii) gross or willful misconduct by the Employee resulting in
substantial loss to the Company or any of its subsidiaries or substantial
damage to the reputation of the Company or any of its subsidiaries, (iii) any
act by the Employee involving moral turpitude which results in a conviction of,
or a pleading nolo contenders to, a felony or other crime involving moral
turpitude, fraud or misrepresentation, (iv) willful and continued failure or
neglect by the Employee to substantially perform his assigned duties to the
Company or any of its subsidiaries, (v) gross breach of the Employee's
fiduciary obligations to the Company or any of its subsidiaries, (vi) any
chemical dependence which materially affects the performance of the Employee's
duties and responsibilities to the Company or any of its subsidiaries, or (vii)
commission of a felony or a crime by the Employee involving moral turpitude or
the commission of any other significant act by the Employee involving
dishonesty, disloyalty or fraud with respect to the Company; provided that in
the case of the misconduct set forth in clauses (iv) and (vi) above, such
misconduct shall continue for a period of 15 days following written notice
thereof by the Company to the Employee.
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(c) Without "Cause." Notwithstanding any provisions of this
Agreement to the contrary, the Company may terminate the Employee's employment
hereunder for any reason other than those specified in the foregoing paragraphs
(a) and (b), or for no reason, at any time during the Employment Term,
effective upon delivery of two (2) day's notice by the Company.
(d) Voluntary Resignation. The Employee may terminate his
employment hereunder at any time during the Employment Term subject only to the
requirement that the Employee shall provide the Company with a minimum of
thirty (30) days prior written notice.
(e) With "Good Reason." Notwithstanding any provision of this
Agreement to the contrary, the Employee may terminate his employment hereunder
for Good Reason, subject to the requirement that the Employee shall provide the
Company with a minimum of two (2) weeks prior written notice. For purposes of
this Agreement, the Employee shall have "Good Reason" to terminate his
employment hereunder upon the occurrence, without the Employee's written
consent, of any of the following: (i) a significant change in the nature or
scope of the Employee's duties from those described in Section 1 above,
including a material demotion or any assignment of duties materially and
adversely inconsistent with Employee's position as Chief Executive Officer,
(except in connection with the termination of Employee's employment for Cause
or due to Disability or as a result of Employee's death, or temporarily as a
result of Employee's illness or other absence); (ii) a failure by the Company
to pay to the Employee any amounts due under this Agreement in accordance with
the terms hereof, which failure is not cured within fifteen (15) days following
receipt by the Company of notice from the Employee of such failure; (iii) any
other material breach by the Company of this Agreement that remains uncured for
fifteen (15) days after written notice thereof by the Employee to the Company;
or (iv) the conversion of the chapter 11 case of e.Volve Technology Group, Inc.
to a chapter 7 case, through no fault of the Employee; provided, however, that
with respect to a termination under (iv), a minimum of five (5) business days
prior written notice is necessary.
7. Compensation upon Termination. The Employee shall be entitled
to the following compensation from the Company, in lieu of all other sums owed
or payable to the Employee hereunder, upon the termination of the Employee's
employment during the Employment Term of this Agreement.
(a) Death or Disability. In the event of the death or Disability
of the Employee during the Employment Term, except for amounts of base salary
and accrued vacation time earned by the Employee as of the date of termination
but not yet paid by the Company, the Company shall have no obligation to make
payments to the Employee or his estate, in accordance with the provisions of
Section 4 or otherwise, for the periods after the date the Employee's
employment with the Company terminates on account of death or Disability.
(b) With Cause. In the event that the Employee's employment is
terminated by the Company for Cause, except for the amounts of base salary and
accrued vacation time
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earned by the Employee as of the date of termination but not yet paid by the
Company, the Company shall have no obligation to make payments to the Employee,
in accordance with the provisions of Section 4 or otherwise, for the periods
after the date the Employee's employment with the Company terminates.
(c) Without Cause. In the event that the Employee's employment is
terminated by the Company without Cause at any time during the Employment Term,
the Employee shall be entitled to receive upon delivery to the Company of a
general release and waiver releasing the Company of all claims of the Employee
(1) an amount equal to his base salary, then in effect, for the remainder of
the Employment Term (the "Severance Period"), such amount to be payable, at the
Company's option, in a lump sum on the date of termination or the date on which
the Employment Term expires, as the case may be, or ratably over the Severance
Period and (2) the amounts of base salary and accrued vacation time earned by
the Employee as of the date of termination but not yet paid by the Company
pursuant to Section 4.
(d) Voluntary Resignation. In the event that the Employee's
employment is terminated by the Employee pursuant to Section 6(d), except for
amounts of base salary and accrued vacation time earned by the Employee as of
the date of termination but not yet paid by the Company pursuant to Section 4,
the Company shall have no obligation to make payments to the Employee, in
accordance with the provisions of Section 4 or otherwise, for the periods after
the date the Employee's employment with the Company terminates on account of
voluntary resignation. Notwithstanding any provision of this Agreement to the
contrary, if the Employee's employment with the Company terminates on account
of voluntary resignation for Good Reason, the Employee shall be entitled to
receive (1) an amount equal to his base salary, then in effect, for the
Severance Period, such amount to be payable, at the Company's option, in a lump
sum on the date of termination, or ratably over the Severance Period and (2)
the amounts of base salary and accrued vacation time earned by the Employee as
of the date of termination but not yet paid by the Company pursuant to Section
4.
8. Non-Competition and Non-Solicitation.
(a) (i) The Employee acknowledges that as a result of his
employment by the Company, the Employee will acquire knowledge of the trade and
proprietary and confidential information as to the Company and its Affiliates
and will create relationships with customers, suppliers and other persons
dealing with the Company and its Affiliates and the Company and its Affiliates
will suffer substantial damage, which would be difficult to ascertain and is
not compensable by monetary damages, if the Employee should use such trade
secrets or other proprietary and confidential information or take advantage of
such relationship and that because of the nature of the information that will
be known to the Employee and the relationships created, it is necessary for the
Company and its Affiliates to be protected by the prohibition against
Competition as set forth herein.
(ii) The Employee acknowledges that the retention of
nonclerical employees employed by the Company and its Affiliates in which the
Company and its Affiliates have invested training and depend on for the
operation of their businesses is
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important to the businesses of the Company and its Affiliates, that the
Employee will obtain unique information as to such employees and will develop
unique relationships with such persons as a result of being an employee of the
Company and, therefore, it is necessary for the Company and its Affiliates to
be protected from the Employee's Solicitation (as defined below) of such
employees as set forth below.
(iii) The Employee acknowledges that the provisions of
this Agreement are reasonable and necessary for the protection of the
businesses of the Company and its Affiliates and that part of the compensation
paid under this Agreement and the agreement to pay compensation upon
termination in certain instances is in consideration for the agreements in this
Section 8.
(b) For the purposes of this Agreement, "Competition" shall mean:
participating, directly or indirectly, as an individual proprietor, partner,
stockholder, officer, employee, director, joint venturer, investor, lender,
consultant or in any capacity whatsoever (within the United States of America,
or in any country where the Company or its Affiliates do business) in a
Competing Business (as defined below); provided, however, that such
participation shall not include (i) the mere ownership of not more than three
percent (3%) of the total outstanding stock of a publicly held company; or (ii)
any activity engaged in with the prior written approval of the Board of
Directors of the Company.
For the purposes of this Agreement, "Competing Business"
shall mean any continuing line of business engaged in by the Company and/or its
subsidiaries and/or any entity in which the Company and/or its subsidiaries
holds securities (other than entities in which the Company or its subsidiaries
make a nominal investment) (i) from time to time (while Employee is employed by
the Company) or (ii) at the time of termination (upon termination of Employee's
employment), including the origination, transmission and termination of
domestic and international voice traffic.
For the purposes of this Agreement, "Affiliate" of the
Company shall mean any Person directly or indirectly controlling, controlled
by, or under common control with, the Company; provided that, for the purposes
of this definition, "control" (including with correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect to the
Company, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and polices of the Company,
whether through the ownership of voting securities or other equity interests,
by contract or otherwise.
For purposes of this Agreement, "Person" shall mean and
include an individual, a partnership, a limited liability company, a joint
venture, a corporation, a trust, an unincorporated organization, a group and a
government or other department or agency thereof.
(c) For purposes of this Agreement, "Solicitation" shall mean:
recruiting, soliciting or inducing, of any nonclerical employee or employees of
the Company or its Affiliates to terminate their employment with, or otherwise
cease their relationship with, the Company or its Affiliates or hiring or
assisting another person or entity to hire any nonclerical employee of the
Company or its Affiliates or any person who within twelve
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(12) months before had been a nonclerical employee of the Company or its
Affiliates and were recruited or solicited for such employment or other
retention while an employee of the Company, provided, however, that
Solicitation shall not include any of the foregoing activities engaged in with
the prior written approval of the Board of Directors of the Company.
(d) If any restriction set forth with regard to Competition or
Solicitation is found by any court of competent jurisdiction, or in
arbitration, to be unenforceable because it extends for too long a period of
time or over too great a range of activities or in too broad a geographic area,
it shall be interpreted to extend over the maximum period of time, range of
activities or geographic area as to which it may be enforceable. If any
provision of this Section 8 shall be declared to be invalid or unenforceable,
in whole or in part, as a result of the foregoing, as a result of public policy
or for any other reason, such invalidity shall not affect the remaining
provisions of this Section 8 which shall remain in full force and effect.
(e) During the Employment Term and for six (6) months following a
termination of Employee's employment for any reason whatsoever, whether by the
Company or by the Employee and whether or not with Cause, Good Reason or
non-extension of the Employment Term, the Employee will not engage in
Solicitation.
(f) During the Employment Term and for the Restricted Period (as
hereafter defined) following a termination of Employee's employment, Employee
will not engage in Competition with the Company. The "Restricted Period" shall
mean (i) for a termination for Cause by the Company, or without Good Reason by
the Employee, six (6) months following the date of termination and (ii) for
termination without Cause by the Company, or for Good Reason by the Employee,
the period in which the Company is making payments to Employee as specified in
Section 7 above.
(g) In the event of a breach or potential breach of this Section
8, Employee acknowledges that the Company and its Affiliates will be caused
irreparable injury and that money damages may not be an adequate remedy and
agree that the Company and its Affiliates shall be entitled to injunctive
relief (in addition to its other remedies at law) to have the provisions of
this Section 8 enforced. It is hereby acknowledged that the provisions of this
Section 8 are for the benefit of the Company and all of the Affiliates of the
Company and each such entity may enforce the provisions of this Section 8 and
only the applicable entity can waive the rights hereunder with respect to its
confidential information and employees.
(h) Furthermore, in addition to and not in limitation of any
other remedies provided herein or at law or in equity, in the event of breach
of this Section 8 by the Employee, while he is receiving amounts under Section
7(c) or (d) hereof, the Employee shall not be entitled to receive any future
amounts pursuant to Section 7(c) or (d) hereof and shall reimburse the Company
for any amounts previously paid to the Employee pursuant to Section 7(c) or (d)
hereof.
9. Confidential Information, Inventions and Trade Secrets. As a
condition to the effectiveness of this Agreement, the Employee shall enter into
a Confidential
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Information and Invention Assignment Agreement, substantially in the form of
Annex A attached hereto.
10. Arbitration.
(a) (i) Any dispute, controversy or claim arising out of,
relating to, or in connection with, this contract, or the breach, termination
or validity thereof, shall be finally settled by arbitration. The arbitration
shall be conducted in accordance with the Commercial Arbitration Rules of the
American Arbitration Association in effect at the time of the arbitration,
except as they may be modified herein or by mutual agreement of the parties.
The seat of the arbitration shall be Dallas, Texas. Notwithstanding Section
12(c), the arbitration and this clause shall be governed by the Federal
Arbitration Act, 9 U.S.C. xx.xx. 1 et seq.
(ii) The arbitration shall be conducted by three
arbitrators. The party initiating arbitration (the "Claimant") shall appoint an
arbitrator in its request for arbitration (the "Request"). The other party (the
"Respondent") shall appoint an arbitrator within 30 days of receipt of the
Request and shall notify the Claimant of such appointment in writing. If within
30 days of receipt of the Request by the Respondent, either party has not
appointed an arbitrator, then the arbitrator shall be appointed by the American
Arbitration Association. The first two arbitrators appointed in accordance with
this provision shall appoint a third arbitrator within 30 days after the
Respondent has notified Claimant of the appointment of the Respondent's
arbitrator or, in the event of a failure by a party to appoint, within 30 days
after the American Arbitration Association has notified the parties and any
arbitrator already appointed of its appointment of an arbitrator on behalf of
the party failing to appoint. When the third arbitrator has accepted the
appointment, the two arbitrators making the appointment shall promptly notify
the parties of the appointment. If the first two arbitrators appointed fail to
appoint a third arbitrator or so to notify the parties of the appointment, the
American Arbitration Association shall appoint the third arbitrator and shall
promptly notify the parties of the appointment. The third arbitrator shall act
as Chair of the tribunal.
(iii) The arbitral award shall be in writing, state the
reasons for the award, and be final and binding on the parties. The award shall
include an award of costs, as set forth in Section 10(iv) below, including the
costs and expenses of the arbitration. Judgment upon the award may be entered
by any court having jurisdiction thereof or having jurisdiction over the
relevant party or its assets. A request for interim measures by a party to a
court shall not be deemed incompatible with, or a waiver of, this agreement to
arbitrate.
(iv) Enforcement Costs. In the event that either the
Company or the Employee initiates an arbitration, in accordance with this
Section 10, to enforce any provision or term of this Agreement, the costs and
expenses of the arbitration (excluding attorneys fees) of the prevailing party
shall be paid by the other party. A party shall be deemed to have prevailed if
such arbitration is concluded pursuant to an order, award or final judgment of
the arbitrators which is not subject to a modification, an appeal, a
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settlement agreement or a dismissal of the principle claims. Each party shall
pay its own attorney's fees.
11. Notice. All notices, objections and other communications
hereunder shall be in writing and shall be deemed to have been duty given on
the day they are personally delivered (return receipt requested), one (1) day
after they are sent by Federal Express or another nationally recognized courier
service or by facsimile transmission upon electronic confirmation of receipt
thereof during normal business hours, or three (3) days after they are sent by
certified mail with postage prepaid (return receipt requested) to the following
addresses (or at such other address for a party as shall be specified by like
notice):
If to the Employee:
Xxxxxx X. Xxxxxxxx
0000 Xxxxxx Xxxxxx, Xx. 000
Xxxxxx, XX 00000
If to the Company:
Novo Networks Operating Corp.
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx, Esquire
With a copy to:
The Bayard Firm, P.A.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esquire
12. General.
(a) Construction and Severability. If any provision of this
Agreement shall be held invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired, and the parties undertake
to implement all efforts which are necessary, desirable and sufficient to
amend, supplement or substitute all and any such invalid, illegal or
unenforceable provisions with enforceable and valid provisions which would
produce as nearly as may be possible the result previously intended by the
parties without renegotiation of any material terms and conditions stipulated
therein.
(b) Assignability. The Employee may not assign his interest in or
delegate his duties under this Agreement. Notwithstanding anything else in this
Agreement to the contrary, the Company may assign this Agreement to and all
rights hereunder shall inure to the benefit of any person, firm or corporation
succeeding to all or substantially all of the business or assets of the Company
by purchase, merger or consolidation.
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(c) Governing Law. This Agreement shall be governed in all
respects, including as to validity, interpretation, construction, performance
and effect, by the laws of the State of Texas applicable to contracts executed
and to be performed entirely within said state.
(d) Binding Effect. This Agreement is for the employment of the
Employee, personally, and for the services to be rendered by him must be
rendered by him and no other person. This Agreement shall be binding upon and
inure to the benefit of the Company and its successors and assigns.
(e) Entire Agreement, Modification. This Agreement contains the
entire agreement of the parties hereto with respect to the subject matter
hereof and may not be modified or amended in any way except in writing by the
parties hereto.
(f) Duration. Notwithstanding the term of employment hereunder,
this Agreement shall continue for so long as any obligations remain under this
Agreement.
(g) Survival. The covenants set forth in Sections 6, 8 and 9 of
this Agreement shall survive and, shall continue to be binding upon Employee
notwithstanding the termination of this Agreement for any reason whatsoever.
The covenants set forth in Sections 6, 8 and 9 of this Agreement shall be
deemed and construed as separate agreements independent of any other provision
of this Agreement. The existence of any claim or cause of action by Employee
against Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by Company of any or all covenants. It
is expressly agreed that the remedy at law for the breach or any such covenant
is inadequate and that injunctive relief shall be available to prevent the
breach or any threatened breach thereof.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have hereunto executed this Agreement the day and year first written above.
NOVO NETWORKS OPERATING CORP.
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Director
Title: Senior Vice President, General
Counsel and Secretary
EMPLOYEE
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx
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SCHEDULE 3
to Employment Agreement
EMPLOYMENT TERM
The Employment Term shall be for four (4) months commencing on the date
of this agreement. The parties, by prior agreement, may extend the term.
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SCHEDULE 4(A)
to Employment Agreement
SALARY
BASE SALARY
The monthly salary shall be thirty thousand and no/100 ($30,000.00) dollars.
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ANNEX A
to Employment Agreement
This CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT AGREEMENT (the
"Agreement") is MADE BETWEEN e.Volve Technology Group. Inc. (the "Company") and
the undersigned employee.
In consideration of my employment with the Company (which for purposes
of this Agreement shall be deemed to include any subsidiaries or Affiliates of
the Company), the receipt of confidential information while associated with the
Company, and other good and valuable consideration, I, the undersigned
individual, agree that:
1. Term of Agreement. This Agreement shall continue in full force
and effect for the duration of my employment by the Company (the "Period of
Employment") and shall continue thereafter until terminated through a written
instrument signed by both parties.
2. Confidentiality.
(a) Definitions. "Proprietary Information" is all information and
any idea whatever form, tangible or intangible, pertaining in any manner to the
business of the Company, or any of its Affiliates, or its employees, clients,
consultants, or business associates, which was produced by any employee or
consultant of the Company in the course of his or her employment or consulting
relationship with the Company or otherwise produced or acquired by or on behalf
of the Company. All Proprietary Information not generally known outside of the
Company's organization, and all Proprietary Information so known only through
improper means, shall be deemed "Confidential Information." By example and
without limiting the foregoing definition, Proprietary and Confidential
Information shall include, but not be limited to:
(i) formulas, research and development techniques,
processes, trade secrets, computer programs, software, hardware, electronic
codes, mask works, inventions, innovations, patents, patent applications,
discoveries, improvements, data, know-how, formats, test results, and research
projects;
(ii) information about pricing, costs, profits, markets,
sales, contracts and lists of customers, and distributors;
(iii) business, financial, marketing, and strategic plans;
(iv) forecasts, unpublished financial information,
budgets, projections, and customer identities, characteristics, data, and
agreements; and
(v) employee personnel files and compensation
information.
Confidential Information is to be broadly defined, and includes all
information that has or could have commercial value or other utility in the
business in which the Company is engaged or contemplates engaging, and all
information of which the unauthorized disclosure
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could be detrimental to the interests of the Company, whether or not such
information is identified as Confidential information by the Company.
(b) Existence of Confidential Information. The Company owns and
has developed and compiled, and will continue to develop and compile, certain
trade secrets, proprietary techniques and other Confidential Information which
have great value to its business. This Confidential Information includes not
only information disclosed by the Company to me, but also information developed
or learned by me during the course of my employment with the Company.
(c) Protection of Confidential Information. I will not, directly
or indirectly, use, make available, sell, disclose or otherwise communicate to
any third party, other than in my assigned duties and for the benefit of the
Company, any of the Company's Confidential Information, at any time during or,
after my employment with the Company. In the event I desire to publish the
results of my work for the Company through literature or speeches, I will submit
such literature or speeches to the Board of Directors of the Company at least
ten (10) days before dissemination of such information for a determination of
whether such disclosure may alter trade secret status, may be highly prejudicial
to the interests of the Company, or may constitute an invasion of its privacy. I
agree not to publish, disclose or otherwise disseminate such information without
prior written approval of the Board of Directors of the Company. I acknowledge
that I am aware that the unauthorized disclosure of Confidential Information of
the Company may be highly prejudicial to its interests, an invasion of privacy,
and an improper disclosure of trade secrets.
(d) Delivery of Confidential Information. Upon request or when my
employment with the Company terminates for any reason, I will immediately
deliver to the Company all copies of any and all materials and writings received
from, created for, or belonging to the Company including, but not limited to,
those which relate to or contain Confidential Information.
(e) Location and Reproduction. I shall maintain at my work station
and/or any other place under my control only such Confidential Information as I
have a current "need to know." I shall return to the appropriate person or
location or otherwise properly dispose of Confidential Information once that
need to know no longer exists. I shall not make copies of or otherwise reproduce
Confidential Information unless there is a legitimate business need of the
Company for reproduction.
(f) Prior Actions and Knowledge. I represent and warrant that,
from the time of my first contact with the Company, I have held in strict
confidence all Confidential Information and have not disclosed any Confidential
Information, directly or indirectly, to anyone outside the Company, or used,
copied, published, or summarized any Confidential Information, except to the
extent otherwise permitted in this Agreement.
(g) Third-Party Information. I acknowledge that the Company has
received and in the future will receive from third parties their confidential
information subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. I agree that, during the Period of Employment and thereafter, I will
hold all such confidential information in the strictest confidence and not to
disclose or use
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it, except as necessary to perform my obligations hereunder and as is consistent
with the Company's agreement with such third parties.
(h) Third Parties. I represent that my employment with the Company
does not and will not breach any agreements with or duties to a former employer
or any other third party. I will not disclose to the Company or use on its
behalf any confidential information belonging to others and I will not bring
onto the premises of the Company any confidential information belonging to any
such party unless consented to in writing by such party.
I acknowledge that the Company would not hire me or give me access to
Confidential or Proprietary Information, but for my covenants contained in this
Section 2.
3. Proprietary Rights, Inventions and New Ideas.
(a) Definition. The term "Subject Ideas or Inventions" includes
any and all ideas, processes, trademarks, service marks, inventions, designs,
technologies, computer hardware or software, original works of authorship,
formulas, discoveries, patents, copyrights, copyrightable works, products,
marketing and business ideas, and all improvements, knowhow, data, rights, and
claims related to the foregoing that, whether or not patentable, which are
conceived, developed or created which: (i) relate to the Company's current or
contemplated business or activities: (ii) relate to the Company's actual or
demonstrably anticipated research or development; (iii) result from any work
performed by me for the Company no matter where the work is or was performed;
(iv) involve the use of the Company's equipment, supplies, facilities or trade
secrets; (v) result from or are suggested by any work done by the Company or at
the Company's request, or any projects specifically assigned to me, or (vi)
result from my access to any of the Company's memoranda, notes, records,
drawings, sketches, models, maps, customer lists, research results, data,
formulae, specifications, inventions, processes, Confidential Information,
equipment, or other materials (collectively, "Company Materials").
(b) Company Ownership. All right, title and interest in and to all
Subject Ideas and Inventions, including but not limited to all registrable and
patent rights which may subsist therein, shall be held and owned solely by the
Company, and where applicable, all Subject Ideas and Inventions shall be
considered works made for hire. I shall xxxx all Subject Ideas and Inventions
with the Company's copyright or other proprietary notice as directed by the
Company and shall take all actions deemed necessary by the Company to protect
the Company's rights therein. In the event that the Subject Ideas and Inventions
shall be deemed not to constitute works made for hire, or in the event that I
should otherwise, by operation of law, be deemed to retain any rights (whether
moral rights or otherwise) to any Subject Ideas and Inventions. I agree to
assign to the Company, without further consideration, my entire right, title and
interest in and to each and every such Subject Idea and Invention.
(c) Maintenance of Records. I agree to keep and maintain adequate
and current written records of all Subject Ideas and Inventions and their
development made by me (solely or jointly with others) during the term of my
employment with the Company. These records will be in the form of notes,
sketches, drawings, and any other format that may be specified by the Company.
These records will be available to and remain the sole property of the Company
at all times. I agree that all copies of any documents or materials related to
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Subject Ideas and Inventions will remain with the Company after my termination
(for whatever reason).
(d) Determination of Subject Ideas and Inventions. I further agree
that all information and records pertaining to any idea, process, trademark,
service xxxx, invention, technology, computer hardware or software, original
work of authorship, design, formula, discovery, patent, copyright, product, and
all improvements, know-how, rights, and claims related to the foregoing
("Intellectual Property"), that I do not believe to be a Subject Idea or
Invention, but that is conceived, developed, or reduced to practice by the
Company (alone by me or with others) during the Period of Employment and for one
(1) year thereafter, shall be disclosed promptly by me to the Company (such
disclosure to be received in confidence). The Company shall examine such
information to determine if in fact the Intellectual Property is a Subject Idea
or Invention subject to this Agreement.
(e) Access. Because of the difficulty of establishing when any
Subject Ideas or Inventions are first conceived by me, or whether they result
from my access to Confidential Information or Company Materials, I agree that
any Subject Idea and Invention shall, among other circumstances, be deemed to
have resulted from my access to Company Materials if: (i) it grew out of or
resulted from my work with the Company or is related to the business of the
Company, and (ii) it is made, used, sold, exploited or reduced to practice, or
an application for patent, trademark, copyright or other proprietary protection
is filed thereon, by me or with my significant aid, within one (1) year after
termination of the Period of Employment.
(f) Assistance. I further agree to assist the Company in every
proper way (but at the Company's expense) to obtain and from time to time
enforce patents, copyrights or other rights or registrations on said Subject
Ideas and Inventions in any and all countries, and to that end will execute all
documents necessary:
(i) to apply for, obtain and vest in the name of the
Company alone (unless the Company otherwise directs) letters patent, copyrights
or other analogous protection in any country throughout the world and when so
obtained or vested to renew and restore the same; and
(ii) to defend any opposition proceedings in respect of
such applications and any opposition proceedings or petitions or applications
for revocation of such letters patent, copyright or other analogous protection;
and
(iii) to cooperate with the Company (but at the Company's
expense) in any enforcement or infringement proceeding on such letters patent,
copyright or other analogous protection.
(g) Authorization to Company. In the event the Company is unable,
after reasonable effort, to secure my signature on any patent, copyright or
other analogous protection relating to a Subject Idea and Invention, whether
because of my physical or mental incapacity or for any other reason whatsoever.
I hereby irrevocably designate and appoint the Company and its duly authorized
officers and agents as my agent and attorney-in-fact, to act for and on my
behalf and stead to execute and file any such application, applications or other
documents and to do all other lawfully permitted acts to further the
prosecution, issuance, and enforcement of letters patent, copyright or other
analogous rights
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or protections thereon with the same legal force and effect as if executed by
me. My obligation to assist the Company in obtaining and enforcing patents and
copyrights for Subject Ideas and Inventions in any and all countries shall
continue beyond the termination of my relationship with the Company, but the
Company shall compensate me at a reasonable rate after such termination for time
actually spent by me at the Company's request on such assistance.
(h) Exclusion. I acknowledge that there are no currently existing
ideas, processes, inventions, discoveries, marketing or business ideas or
improvements which I desire to exclude from the operation of this Agreement. To
the best of my knowledge, there is no other contract to assign inventions,
trademarks, copyrights, ideas, processes, discoveries or other intellectual
property that is now in existence between me and any other person (including any
business or governmental entity).
(i) No Use of Name. I shall not at any time use the Company's name
or any of the Company trademark(s) or trade names) in any advertising or
publicity without the prior written consent of the Company.
(j) Acknowledgment. I acknowledge that the Company would not hire
me but for my covenants contained in these Sections.
4. Representations and Warranties. I represent and warrant (i)
that I have no obligations, legal, contractual, or otherwise, inconsistent with
the terms of this Agreement or with my undertaking a relationship with the
Company; (ii) that the performance of the services called for by this Agreement
do not and will not violate any applicable law, rule or regulation or any
proprietary or other right of any third party; (iii) that I will not use in the
performance of my responsibilities for the Company any materials or documents of
a former employer; and (iv) that I have not entered into and will not enter into
any agreement (whether oral or written) in conflict with this Agreement.
5. Termination Obligations.
(a) Upon the termination of my relationship with the Company (for
whatever reason) or promptly upon the Company's request, I shall surrender to
the Company all equipment, tangible Proprietary Information, Confidential
Information, documents, books, notebooks, records, reports, notes, memoranda,
drawings, sketches, models, maps, contracts, lists, computer disks (and other
computer-generated tiles and data), any other data and records of any kind, and
copies thereof (collectively, "Company Records"), created on any medium and
furnished to, obtained by, or prepared by myself in the course of or incident to
my employment, that are in my possession or under my control.
(b) My representations, warranties, and obligations contained in
this Agreement shall survive the termination of my employment with the Company.
(c) Following any termination of the Period of Employment, I will
fully cooperate with the Company in all matters relating to my continuing
obligations under this Agreement.
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(d) Upon the termination of my employment with the Company, and at
all times thereafter, I hereby grant consent to notification by the Company to
my new employer about my rights and obligations under this Agreement.
(e) Upon termination of the Period of Employment, I will execute a
Certificate acknowledging compliance with this Agreement in the form reasonably
provided by the Company.
6. Injunctive Relief. I acknowledge that my failure to carry out
any obligation under this Agreement, or a breach by me of any provision herein,
will constitute immediate and irreparable damage to the Company, which cannot be
fully and adequately compensated in money damages and which will warrant
preliminary and other injunctive relief, an order for specific performance, and
other equitable relief. I further agree that no bond or other security shall be
required in obtaining such equitable relief and I hereby consent to the issuance
of such injunction and to the ordering of specific performance. I also
understand that other legal and equitable action may be taken and remedies
enforced against me.
7. Modification. No modification of this Agreement shall be valid
unless made in writing and signed by both parties. Any such writing may only be
signed on behalf of the Company by the President of the Company.
8. Binding Effect. This Agreement shall be binding upon me, my
heirs, executors, assigns and administrators and is for the benefit of the
Company and its successors and assigns.
9. Arbitration. Any dispute or controversy arising out of or
relating to any interpretation, construction, performance or breach of this
Agreement, shall be settled by arbitration to be held in Dallas, Texas in
accordance with the rules then in effect of the American Arbitration
Association. The arbitrator may grant injunctions or any other relief in such
dispute or controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court having jurisdiction; provided,
however, that the arbitrator shall not have the power to alter or amend this
Agreement.
10. Governing Law. This Agreement shall be construed in accordance
with, and all actions arising under or in connection therewith shall be governed
by, the internal laws of the State of Texas (without reference to conflict of
law principles).
11. Integration. This Agreement sets forth the parties' mutual
rights and obligations with respect to Proprietary Information, Confidential
Information, prohibited competition, and intellectual property. It is intended
to be the final, complete, and exclusive statement of the terms of the parties'
agreements regarding these subjects. This Agreement supersedes all other prior
and contemporaneous agreements and statements on these subjects, and it may not
be contradicted by evidence of any prior or contemporaneous statements or
agreements. To the extent that the practices, policies, or procedures of the
Company, now or in the future, apply to myself and are inconsistent with the
terms of this Agreement, the provisions of this Agreement shall control unless
changed in writing by the Company.
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12. Employment at Will. This Agreement is not an employment
agreement. I understand that the Company may terminate my association or
employment with it at any time, with or without cause, subject to the terms of
any separate written employment agreement, if any, executed by a duly authorized
officer of the Company.
13. Construction. This Agreement shall be construed as a whole,
according to its fair meaning, and not in favor of or against any party. By way
of example and not limitation, this Agreement shall not be construed against the
party responsible for any language in this Agreement. The headings of the
paragraphs hereof are inserted for convenience only, and do not constitute part
of and shall not be used to interpret this Agreement.
14. Attorneys' Fees. Should either I or the Company, or any heir,
personal representative, successor or permitted assign of either party, resort
to legal proceedings to enforce this Agreement, the prevailing party in such
legal proceeding as determined by the arbitrator or other trier of fact, shall
be awarded, in addition to such other relief as may be granted, attorneys' fees
and costs incurred in connection with such proceeding.
15. Severability. If any term, provision, covenant or condition
of this Agreement, or the application thereof to any person, place or
circumstance, shall be held to be invalid, unenforceable or void, the remainder
of this Agreement and such term, provision, covenant or condition as applied to
other persons, places and circumstances shall remain in full force and effect.
16. Rights Cumulative. The rights and remedies provided by this
Agreement are cumulative, and the exercise of any right or remedy by either the
Company or me (or by that party's successor), whether pursuant hereto, to any
other agreement, or to law, shall not preclude or waive that party's right to
exercise any or all other rights and remedies. This Agreement will inure to the
benefit of the Company and its successors and assigns.
17. Nonwaiver. The failure of either the Company or me, whether
purposeful or otherwise, to exercise in any instance any right, power or
privilege under this Agreement or under law shall not constitute a waiver of any
other right, power or privilege, nor of the same right, power or privilege in
any other instance. Any waiver by the Company or by me must be in writing and
signed by either myself, if I am seeking to waive any of my rights under this
Agreement, or by an officer of the Company (other than me) or some other person
duly authorized by the Company.
18. Notices. All notices, objections and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered (return receipt requested) or mailed by certified mail
(return receipt requested) or by Federal Express or another nationally
recognized courier service or by facsimile transmission upon electronic
confirmation of receipt thereof during normal business hours at the following
addresses (or at such other address for a party as shall be specified by like
notice):
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If to the Employee:
Xxxxxx X. Xxxxxxxx
0000 Xxxxxx Xxxxxx, Xx. 000
Xxxxxx, XX 00000
If to the Company:
Novo Networks Operating Corp.
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx, Esquire
With a copy to:
The Bayard Firm, P.A.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esquire
19. Date of Effectiveness. This Agreement shall be deemed
effective as of the commencement of my employment with the Company.
20. Agreement to Perform Necessary Acts. I agree to perform any
further acts and execute and deliver any documents that may be reasonably
necessary to carry out the provisions of this Agreement.
21. Assignment. This Agreement may not be assigned without the
Company's prior written consent. The Company may assign its rights under this
Agreement.
22. Compliance with Law. I agree to abide by all federal, state,
and local laws, ordinances and regulations.
23. Employee Acknowledgment. I acknowledge that I have had the
opportunity to consult legal counsel in regard to this Agreement, that I have
read and understand this Agreement, that I am fully aware of its legal effect,
and that I have entered into it freely and voluntarily and based on my own
judgment and not on any representations or promises other than those contained
in this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date set forth below.
CAUTION: THIS AGREEMENT CREATES IMPORTANT OBLIGATIONS OF TRUST AND
AFFECTS THE EMPLOYEE'S RIGHTS TO INVENTIONS AND OTHER INTELLECTUAL PROPERTY THE
EMPLOYEE MAY DEVELOP DURING HIS OR HER EMPLOYMENT.
Dated: July 17 , 2001
/s/ Xxxxxx X. Xxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxx
NOVO NETWORKS OPERATING CORP.
By /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Director
Title: Senior Vice President, General
Counsel and Secretary
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