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EXHIBIT 10.9
EXECUTIVE EMPLOYMENT AGREEMENT
(3 years)
This Employment Agreement ("Agreement") is made as of __________,
199__, by and between BrightStar Information Technology Group, Inc., a Delaware
corporation, located at 00000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000
(the "Company"), and____________________________________________, an individual
with an address of __________________________
_______________________________________ (the "Employee").
1. Employment. The Company hereby agrees to employ the Employee
and the Employee hereby agrees to work for the Company under the terms and
conditions set forth herein. This Agreement supersedes and replaces any prior
employment agreement or other agreement between the parties dealing with the
subject matter hereof and such prior agreements, if any, are hereby terminated;
provided however, that this agreement shall not affect any provisions of that
certain Stock Repurchase Agreement to be executed by and between Employee and
the Company pursuant to terms of that certain Share Exchange Agreement dated as
of December 15, 1997, by and among the Company, BIT Group Services, Inc., a
Delaware corporation ("BITG"), and the holders of the outstanding capital stock
of BITG, including, without limitation, the definition of termination for
"Cause" contained in such Stock Repurchase Agreement.
2. Term of Employment. The term of employment pursuant to this
Agreement shall begin on the date set forth above (the "Effective Date") and
shall continue in effect for an initial term of three (3) years from the date
set forth above unless terminated in accordance with Section 7, and shall be
extended from year to year thereafter, unless terminated effective as of the
end of the initial term or any one-year extension thereafter by written notice
from the Company to Employee, or by written notice of Employee to the Company,
delivered not less than sixty (60) days prior to the end of the initial term,
or the end of such one-year extension, as applicable.
3. Scope of Duties; Covenants.
(a) The Employee shall be employed by the Company in the
position set forth on Schedule A hereto and shall perform the duties as set
forth on Schedule A hereto. At all times, Employee shall serve under the
direction of the Board of Directors and [the Chief Executive Officer] of the
Company and shall perform such services and exercise such authority as is
customary for such position.
(b) So long as he is employed by the Company, Employee
shall devote his skill, energy and best efforts to the faithful discharge of
his duties as an employee of the Company. The Employee agrees that in the
provision of all services to the Company, he will comply with and follow the
provisions of this Agreement and all directives, policies, standards and
regulations from time to time established by the Board of Directors of the
Company.
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(c) Employee represents and warrants that Employee is
under no contractual or other restrictions or obligations which will
significantly limit the performance of Employee's obligations under this
Agreement or which will prohibit or limit the use by the Employee of any
information which relates to the business of the Company or the services to be
rendered by the Employee under this Agreement (including, without limitation,
any agreement relating to any proprietary information, knowledge or data
acquired by Employee in confidence, trust or under other obligation prior to
Employee's employment by the Company). Employee covenants and agrees that
Employee shall not disclose to the Company, or induce the Company to use, any
such proprietary information, knowledge or data belonging to any previous
employer or others. Employee further covenants and agrees not to enter into
any agreement or understanding, either written or oral, in conflict with the
provisions of this Agreement during the term of this Agreement.
(d) To the extent they relate to, or result from,
directly or indirectly, the actual or anticipated operations of the Company,
the Employee hereby agrees that all Intellectual Property (defined below)
developed, purchased or acquired by the Company, shall be the exclusive
property of the Company, and unless otherwise agreed by the Company, all right,
title and interest therein shall remain in the Company.
(e) The Employee will hold all Intellectual Property and
Confidential Information (defined below) in trust for the Company and will
deliver all Intellectual Property and Confidential Information in his
possession or control to the Company upon request and, in any event, at the end
of his employment with the Company. During the term of his employment with the
Company, the Employee will promptly disclose to the Company all Confidential
Information that comes to Employee's attention which has not previously been
disclosed to the Company, as well as any business opportunity reasonably
related to the scope of business of the Company or an Assisted Affiliate as
described in Section 8, which comes to his attention. The Employee will not
take advantage of or divert from the Company any such business opportunity for
the benefit of himself or any other party without the prior written consent of
the Company.
4. Compensation.
(a) During the first year of the term of employment
hereunder, the Company shall pay the Employee a base salary, payable in equal
periodic installments in accordance with the Company's customary payroll
practices, not less frequently than semi-monthly, at an annual rate or rates
set forth on Schedule A attached hereto and incorporated by reference herein.
Schedule A may also set forth certain other compensation payable to Employee.
In each subsequent year of the term of employment, the Company shall pay to the
Employee a salary and any such other compensation determined by the Board of
Directors following its annual salary and performance review; provided,
however, that such salary and compensation shall not be less than the amount
determined in accordance with Schedule A.
(b) Employee shall receive an annual cash performance
bonus for each calendar year during the term of this Agreement to be determined
according to the following procedure except as may be otherwise mutually agreed
to between the Employee and the Company. The Board of Directors of the Company,
or the Compensation Committee of the Board of Directors, if so
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authorized, shall establish specific annual performance goals for the
Company and for Employee with respect to each calendar year (or
portion thereof) during the term of this Agreement commencing on
January 1, 1998. Such goals shall be communicated to Employee not
later than the end of the first quarter of the applicable calendar
year. At the end of each calendar year during the term of this
Agreement, or within a reasonable time thereafter, the Board of
Directors of the Company, or the Compensation Committee of the Board
of Directors, if so authorized, shall review the actual performance of
the Company and Employee, giving due consideration to market and other
developments outside of the control or influence of Employee and the
Company, and based upon the extent to which the applicable annual
performance goals have been achieved, shall determine in its sole and
absolute discretion, the amount of performance bonus payable to
Employee with respect to such year.
(c) The Company shall also pay Employee a monthly
automobile allowance in the amount set forth on Schedule A attached hereto.
(d) All payments of salary and other compensation to the
Employee shall be made after deduction of any taxes which are required to be
withheld with respect thereto under applicable federal and state laws.
5. Vacation/Personal Time. Employee shall be entitled to leave
for vacation and personal time off as provided on Schedule A attached hereto
and incorporated by reference herein. Unused holidays and days for personal
time off and vacation may not be carried over from one fiscal year to another.
The aggregate number of days specified on Schedule A for vacation and personal
time off need not be taken by Employee in succession, but in any increments and
at any time during the year as approved by the Company. For purposes of this
Agreement, "personal time off" shall include time taken off by Employee on
account of illness, family emergency or death in the immediate family.
6. Fringe Benefits; Expenses. So long as the Employee is
employed by the Company, the Employee shall participate in any employee benefit
plans sponsored by the Company generally for its employees serving in similar
employment capacities as the Employee as determined from time to time by the
board of directors of the Company or any compensation committee of the board of
directors, if any, and on terms at least as favorable to Employee as are
generally offered to other employees of the Company serving in a similar
capacity. The Company shall also reimburse Employee for his reasonable travel
and other out-of-pocket business expenses incurred in connection with his
employment under this Agreement pursuant to expense reports filed in accordance
with the Company's policies in effect from time to time, provided that if
Employee receives an automobile allowance pursuant hereto, then Employee shall
not otherwise be reimbursed for automobile expenses under this provision,
except for out-of-town rental automobiles.
7. Termination.
(a) General. The Company and Employee agree that
Employee's employment hereunder may be terminated by the Employee resigning or
by the Company's declaration of termination with or without "Cause" at any
time, subject to the terms of this Section 7. Such
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termination shall be effective upon delivery of written notice from the acting
party to the other of its election to terminate employment pursuant to this
Section 7. "Cause" when used in connection with the termination of employment
with the Company, shall mean the termination of the Employee's employment by
the Company by reason of (i) Employee's material breach of any of Sections 3,
7, 8, 9, 10, 11 and 12 of this Agreement which breach is not cured within
thirty (30) days of written notice to Employee of such breach; (ii) the
conviction of, or the entering of a guilty plea or no contest plea by, the
Employee for a crime involving felony by a court of competent jurisdiction;
(iii) the commission by the Employee of an act of fraud upon the Company or any
of its affiliates; (iv) the misappropriation of any funds or property of the
Company or any of its affiliates by the Employee; (v) the failure by the
Employee to perform material duties assigned to him pursuant to Schedule A or
otherwise assigned to and accepted by Employee, or to comply with any written
Company policy after reasonable written notice and opportunity to cure such
performance; (vi) the engagement by the Employee in any direct, material
conflict of interest with the Company or any of its Assisted Affiliates without
compliance with the Company's conflict of interest policy, if any, then in
effect; or (vii) the engagement in any activity which would constitute a
material violation of the provisions of the BrightStar Information Technology
Group, Inc. ("BrightStar") xxxxxxx xxxxxxx policy, if any, then in effect.
(b) Termination for Cause or Resignation. If the Company
terminates the Employee's employment for Cause or the Employee voluntarily
resigns, the Company shall pay the Employee's base salary earned through the
date of termination (and any other earned but unpaid compensation and accrued
vacation time prior to termination), but all rights to any other compensation
or benefits arising hereunder, shall be canceled and terminated in all respects
concurrently with such termination of employment; provided that the Employee
may elect to continue to participate, at Employee's own expense, in such health
insurance and other benefits as to which the opportunity for continuing
participation is mandated by applicable laws.
(c) Termination Without Cause. In the event that the
Employee's employment is terminated by the Company without Cause other than at
the end of the initial term or one of the one year renewal terms of this
Agreement, the Company shall, subject to the terms of subsections 7.(e) and
7.(f) below, and only if and as long as Employee is not in breach of his
obligations under this Agreement, pay compensation to Employee in the manner
set forth below. If the Employee is terminated without Cause during the initial
three-year term of this Agreement, then the Company shall continue to pay to
Employee his current base salary provided for under this Agreement, plus any
other earned and unpaid compensation and accrued vacation time prior to
termination, plus a per annum amount of additional compensation based on prior
earned bonuses and/or commissions, if any, equal to the amount of earned
bonuses or commissions of Employee during the twelve complete calendar months
immediately preceding the date of termination ("Severance Payments"), in
periodic payments in accordance with its customary payroll practices for the
period ending the later of (i) the end of the initial three-year term of the
Agreement or (ii) twelve months after termination of employment. If the
Employee is terminated without Cause during any one-year extension of the
initial term of the Agreement, then the Company shall continue to pay to
Employee Severance Payments in accordance with its customary payroll practices
for a period of twelve months after termination of such employment. If the
Employee is terminated by the Company without Cause, the Company shall also
continue to provide benefits in the kind and amounts provided to its
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employees generally for up to twelve months following the date of termination,
including continuation of any Company-paid benefits provided pursuant hereto,
for the Employee and Employee's spouse and minor children, provided such
benefits will be subject to immediate termination to the extent Employee
receives benefits under another similar benefit plan. If the Company fails to
make any of the payments required under this Section 7.(c) when reasonably due,
then any restrictions imposed by Section 8 hereof against Employee competing
with the Company shall immediately lapse, but this shall not release the
Company's obligation for Severance Payments. Employee agrees that the above
payments shall be a full settlement of the Company's obligations to Employee
hereunder in the event of a termination without Cause.
(d) Termination Following Change of Control. In the
event of (i) the sale of all or substantially all of the assets of the Company,
or (ii) a merger, consolidation, liquidation or reorganization of the Company,
in which the Company or an affiliate of the Company is not the surviving
entity, or which results, in any event, in a change of control of the Company
(each, a "Change in Control Transaction"), the Company or the surviving entity,
as the case may be, may either (A) terminate Employee's employment hereunder
and pay to the Employee an amount equal to thirty-six months (36) compensation
at Employee's then current annual salary, payable not less frequently than
monthly, and continue to provide benefits in the kind and amounts provided to
its employees generally for such thirty-six (36) month period (collectively,
"Change of Control Compensation") or (B) adopt this Agreement; provided,
however, that if the Company or the surviving entity elects to adopt this
Agreement following a Change in Control Transaction and it shall subsequently
terminate Employee's term of employment without Cause, then it shall pay and
provide to Employee salary and benefits equal to the greater of (x) the salary
and benefits to be provided under Section 7.(c), and (y) the difference between
the salary and benefits provided to Employee pursuant to clause (A) above and
the aggregate amount of salary and benefits actually paid to Employee following
the Change in Control Transaction.
(e) Disability; Death. If at any time during the term of
this Agreement, Employee is unable, due to physical or mental disability, to
perform effectively his duties hereunder, the Company shall continue payment of
compensation as provided in Section 4 during the first six months of such
disability to the extent not covered by the Company's disability insurance
policies. Upon the expiration of such six month period, the Company, at its
sole option, may continue payment of Employee's salary for such additional
periods as the Company elects, or may terminate this Agreement without any
further obligations hereunder. If Employee should die during the term of this
Agreement, Employee's employment and the Company's obligations hereunder shall
terminate as of the end of the month in which Employee's death occurs and there
will be no salary and benefit continuation period. Employee shall be deemed to
have incurred a disability if Employee suffers a physical or mental condition
which (i) satisfies the definition of "total disability" in the Company's
disability insurance policies, or (ii) if no such policy or plan is then
covering Employee, in the reasonable judgment of the Board of Directors,
prevents Employee from engaging in any substantial gainful employment with the
Company for a period of more than six (6) months.
(f) Standstill Agreement; Lock-up Letters. So long as
Employee is employed by the Company or receives severance compensation as
provided above, Employee agrees that he will sign any reasonable securities
lock-up letters, standstill agreements, or other similar documentation
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required by an underwriter in connection with a public offering of securities
by BrightStar or take other actions reasonably related thereto as requested by
the Board of Directors of the Company under similar terms and conditions as for
other management employees of the Company or BrightStar generally. Failure to
take any such action shall be a "Cause" for termination and shall cause
Employee to forfeit any further rights to compensation or other payments
hereunder. In addition, Employee agrees that in such event the Company can
seek and obtain specific performance of such covenant, including any injunction
requiring execution thereof, and the Employee hereby appoints the then current
President of the Company to sign any such documents on his behalf so long as
such documents are prepared on the same basis as for other management
shareholders generally.
8. Covenant Not to Compete.
(a) During Term of Employment. During Employee's term of
employment pursuant to this Agreement, Employee will not compete with the
Company or its affiliates, directly or indirectly, either for himself or as a
member of a partnership or a limited liability company or as a stockholder
(except as a stockholder of less than one percent (1%) of the issued and
outstanding stock of a publicly-held company whose gross revenues exceed $100
million), investor, owner, officer or director of a company or other entity, or
as an employee, agent, trustee, manager, associate or consultant of any person,
partnership, corporation or other entity, in any business in competition with
that carried on by the Company or any of its affiliates. As of the date hereof,
the Company anticipates that it will engage principally in the business of
providing information technology services to a variety of industries, but the
provisions of this Section 8.(a) shall apply to any business in which the
Company or its affiliates are engaged during the term of Employee's employment.
(b) Restricted Periods. Section 8.(c) below restricts
Employee's ability to compete against the Company or it affiliates following
Employee's term of employment. For purposes of this Section 8, and in
particular Section 8.(c), if Employee voluntarily resigns his employment with
the Company, or is terminated by the Company for Cause, then the period for
which Employee cannot compete with the Company shall be the longer of (i) two
(2) years from the date hereof, or (ii) one (1) year after the termination of
employment ("Restricted Period For Cause"). If Employee is terminated by
Employer without Cause or pursuant to Section 7.(d) above, then the period for
which Employee cannot compete with the Company or its affiliates (the
"Restricted Period Without Cause"), shall be based upon whether Employee was
terminated during the initial three-year term or during any extension thereof.
If Employee was terminated without Cause during the initial three-year term,
the Restricted Period Without Cause shall be the greater of (i) the remaining
months left of the initial three-year term, but not to exceed two (2) years, or
(ii) until one (1) year after the termination of employment without Cause. If
Employee was terminated during any one (1) year extension of the initial
three-year term, the Restricted Period Without Cause shall be equal to one (1)
year after the termination of employment without Cause.
(c) Following Term of Employment. Employee further
agrees that, during the Restricted Period For Cause or the Restricted Period
Without Cause, as applicable, Employee will not represent, engage in or carry
on, directly or indirectly, any business with any customer or client of the
Company (or any customer or client of an affiliate of the Company for which the
Employee has materially assisted such affiliate in serving such customer or
client ("Assisted Affiliate")) at the
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time of termination of employment, or any business within 100 miles of the city
or county limits of any city or county in the United States or foreign
countries where the Company or any Assisted Affiliate has an office or in which
the Company provides services which produce Company revenues of an amount equal
to 2% or more of the Company's revenues for the twelve complete calendar months
preceding the time of termination, which business competes with any business,
services or products produced, sold, conducted, developed, or in the process of
development by the Company or jointly by the Company and an Assisted Affiliate
during the term of Employee's employment, including any business that involves
the furnishing of information technology services that are the type of services
furnished by the Company, either for himself, as a member or equity owner of a
partnership or a limited liability company, or as a shareholder (other than as
a shareholder of less than one percent (1%) of the issued and outstanding stock
of a publicly-held company whose gross revenues exceed $100 million), investor,
owner, officer or director of a company or other entity, or as an employee,
agent, trustee, manager, associate or consultant of any person, partnership,
corporation or other entity. As of the date hereof, the Company anticipates
that it will engage principally in the business of providing information
technology services to a variety of industries, but the provisions of this
Section 8.(c) shall apply to any business in which the Company is engaged at
the termination of Employee's employment.
(d) Employee Agrees to Limitations. Employee agrees that
the limitations set forth herein on his rights to compete with the Company and
its affiliates are reasonable and necessary for the protection of the Company
and its affiliates. In this regard, Employee specifically agrees that the
limitations as to period of time and geographic area, as well as all other
restrictions on his activities specified herein, are reasonable and necessary
for the protection of the Company and its affiliates. In particular, Employee
acknowledges that the parties anticipate that the Employee will be actively
seeking markets for the Company's products throughout the United States and in
other countries of the world during Employee's employment with the Company. In
the event that the provisions of this Agreement should ever be legally held to
exceed the scope of business, time or geographic limitations permitted by
applicable law, such provisions shall be and are hereby reformed to the maximum
scope of business, time or geographic limitations permitted by applicable law.
(e) Affiliates. For purposes of this Agreement, an
"affiliate" of the Company is any person or entity that directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, the Company.
(f) Specific Performance. Employee agrees that the
remedy at law for any breach by him of this Section 8 will be inadequate and
that the Company shall also be entitled to injunctive relief.
9. Confidential Information and Results of Services.
(a) Treatment of Confidential Information. Employee
agrees that during the term of this Agreement, and for five (5) years after his
termination of employment, he will not use or disclose, without the prior
consent of the Company, the Confidential Information (as hereinafter defined)
owned by or subject contractually to be safeguarded by the Company, or any of
its
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affiliates, and further agrees, that he will return to the Company all written,
printed, or other physical presentation or holding of materials in his
possession embodying such Confidential Information. Employee acknowledges that
any information and materials received by the Company from third parties in
confidence (or subject to non-disclosure or similar covenants) shall be deemed
to be and shall be Confidential Information within the meaning of this Section
9. As a material inducement to the Company to employ (or to continue to
employ) Employee and to pay to Employee compensation for such services to be
rendered to the Company by Employee (it being understood and agreed by the
parties hereto that such compensation shall also be paid and received in
consideration hereof), Employee covenants and agrees that Employee shall not,
except with the prior written consent of the Company, or unless Employee is
acting as an employee of the Company solely for the benefit of the Company in
connection with the Company's business and in accordance with the Company's
business practices and employee policies, at any time during or following the
term of Employee's employment by the Company, directly or indirectly, disclose,
divulge, reveal, report, publish, transfer or use, for any purpose whatsoever,
any of such information which has been obtained by or disclosed to Employee as
a result of Employee's employment by the Company.
(b) Definition of Confidential Information. For purposes
of this Agreement, "Confidential Information" includes information conveyed or
assigned to the Company by Employee or conceived, compiled, created, developed,
discovered or obtained by Employee from and during his employment relationship
with the Company, whether solely by the Employee or jointly with others, which
concerns the affairs of the Company or its affiliates and which the Company
could reasonably be expected to desire be held in confidence, or the disclosure
of which would likely be materially embarrassing, detrimental or
disadvantageous to the Company or its affiliates and without limiting the
generality of the foregoing includes information relating to inventions, and
the trade secrets, technologies, algorithms, products, services, systems,
programs (including, without limitation, the Company's computer software
programs), procedures, manuals, confidential reports and communications,
finances, business plans, marketing plans, legal affairs, supplier lists,
client lists, potential clients, business prospects, business opportunities,
personnel assignments, contracts and assets of the Company and information made
available to the Company by other parties under a confidential relationship.
Confidential Information, however, shall not include information (i) which is,
at the time in question, in the public domain through no wrongful act of
Employee, (ii) which is later disclosed to Employee by one not under
obligations of confidentiality to the Company or Employee, (iii) which the
Company has expressly given Employee the right to disclose pursuant to written
agreement, or (iv) which is required by court or governmental order, law or
regulation to be disclosed; provided, that Employee shall first have given
prompt notice to the Company of any such possible or prospective order (or
proceeding pursuant to which any such order may result) such that the Company
shall have been afforded a reasonable opportunity to prevent or limit any such
disclosure. Employee agrees that the remedy at law for any breach by him of
this Section 9 will be inadequate and that the Company shall also be entitled
to injunctive relief.
10. Definition of Intellectual Property.
(a) For purposes of this Agreement, the term
"Intellectual Property" shall mean all of the information referred to in
Section 9 hereof and all of the following materials and information (whether or
not reduced to writing and whether or not patentable or protectible by
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copyright) which Employee receives, receives access to, conceives or develops
or has received, received access to, conceived or developed, in whole or in
part, directly or indirectly, in connection with Employee's employment with the
Company and any assistance to affiliates of the Company and related to the
Company's and its affiliates scope of business (in any capacity, whether
executive, managerial, planning, technical, sales, research, development,
manufacturing, engineering or otherwise) or through the use of any of the
Company's facilities or resources:
(b) Discoveries, concepts, and ideas including, without
limitation, the nature and results of research and development activities,
processes, formulas, inventions, computer-related equipment or technology,
techniques, "know-how," designs, drawings and specifications;
(c) Production processes, marketing techniques and
arrangements, mailing lists, purchasing information, pricing policies, quoting
procedures, financial information, customer and prospect names and
requirements, employee, customer, supplier and distributor data and other
materials or information relating to the Company's business and activities and
the manner in which the Company does business;
(d) Applications, operating systems, data bases,
communications and other computer software, whether now or hereafter existing
and developed for use on any operating system, and all modifications,
enhancements and versions and all options available with respect thereto, and
all future products developed or derived therefrom;
(e) Source and object codes, flowcharts, algorithms,
coding sheets, routines, sub-routines, compilers, assemblers, design concepts
and related documentation and manuals;
(f) Any other materials or information related to the
business or activities of the Company which are not generally known to others
engaged in similar businesses or activities; and
(g) Patents, trademarks, copyrights, trade secrets, all
inventions, whether or not patentable, and any product, drawing, design,
recording, computer software program, writing, literary work or other author's
work, in any other tangible form developed in whole or in part by Employee
during the term of this Agreement;
(h) All ideas, inventions, techniques, modifications,
processes, or improvements which are derived from or relate to Employee's
access to or knowledge of any of the above enumerated materials and
information, or which are created, conceived, developed, purchased or acquired
by Employee, either solely or in conjunction with others, during the term of
Employee's employment with the Company which relate to, or are useful in, the
business being conducted or proposed to be conducted by the Company or its
affiliates, and any such item created by the Employee, either solely or in
conjunction with others, following termination of the Employee's employment
with the Company, that is based upon or uses Intellectual Property.
(i) Failure to xxxx any of the Intellectual Property as
confidential, proprietary or Intellectual Property shall not affect its status
as part of the Intellectual Property under the terms of this Agreement.
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(j) For purposes of this Agreement, the term
"Intellectual Property" shall not apply to any ideas, inventions, techniques,
modifications, processes, or improvements for which no equipment, supplies,
facility or Intellectual Property of the Company was used, which was developed
entirely on Employee's own time, and which does not (i) relate to the business
of the Company, (ii) relate to the Company's actual or demonstrably anticipated
research or development or (iii) result from any work performed by Employee for
the Company.
11. Ownership of Information.
(a) Employee covenants and agrees that all right, title
and interest in any Intellectual Property shall be and shall remain the
exclusive property of the Company. Employee agrees immediately to disclose to
the Company all Intellectual Property developed in whole or in part by Employee
during the term of Employee's employment with the Company and to assign to the
Company any right, title or interest Employee may have in such Intellectual
Property. Employee agrees to execute any instruments and to do all other
things reasonably requested by the Company (both during and after Employee's
employment with the Company) in order to vest more fully in the Company all
ownership rights in those items transferred by Employee to the Company;
(b) Employee will not contest the validity of any
invention, any copyright, any trademark or any mask work registration owned by
or vesting in the Company under this Agreement;
(c) Employee will execute, acknowledge, and deliver to
the Company such applications, assignments (including patent applications and
assignments), and other documents as the Company may request in order to apply
for and obtain patents or other registrations with respect to any Intellectual
Property in the United States and any foreign jurisdictions;
(d) Employee will sign all other papers necessary to
carry out the above obligations; and
(e) Employee will give testimony and render any other
assistance but without expense to the Employee in support of the Company's
rights to any Intellectual Property.
(f) If any one or more of the foregoing items are
protectible by copyright and are deemed in any way to fall within the
definition of "work made for hire," as such term is defined in 17 U.S.C.
Section 101, such work shall be considered a "work made for hire," the
copyright of which shall be owned solely, completely and exclusively by the
Company. If any one or more of the aforementioned items are protectible by
copyright and are not considered to be included in the categories of works
covered by the "work made for hire" definition contained in 17 U.S.C. Section
101, such items shall be deemed to be assigned and transferred completely and
exclusively to the Company by virtue of the execution of this Agreement.
12. Covenants Not to Hire Employees. It is recognized and
understood by the parties hereto that the employees of the Company are an
integral part of the Company's business and that it is extremely important for
the Company to use its maximum efforts to prevent the Company from losing
employees. It is therefore understood and agreed by the parties hereto that,
because of the
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nature of the business of the Company, it is necessary to afford fair
protection to the Company from the loss of any such employees. Consequently,
as a material inducement to the Company to employ (or continue to employ)
Employee, Employee covenants and agrees that, for the period commencing on the
date of Employee's termination of employment for any reason whatsoever and
ending two (2) years after Employee's termination of employment with the
Company, Employee shall not, directly or indirectly, hire or engage or attempt
to hire or engage any individual who shall have been an employee of the Company
at any time during the one (1) year period prior to the date of Employee's
termination of employment with the Company, whether for or on behalf of
Employee or for any entity in which Employee shall have a direct or indirect
interest (or any subsidiary or affiliate of any such entity), whether as a
proprietor, partner, co-venturer, financier, investor or stockholder, director,
officer, employer, employee, servant, agent, representative or otherwise. If
Employee violates this Section 12, Employee agrees that, as part of the damages
recoverable by the Company, Employee shall pay to the Company a liquidated
damages amount equal to the compensation of the employee of the Company
solicited away from employment with the Company by Employee for the twelve
months preceding the date of said employee's termination from the Company.
13. Injunctive Relief. Employee understands and agrees that the
Company shall suffer irreparable harm in the event that Employee breaches any
of Employee's obligations under this Agreement and that monetary damages shall
be inadequate to compensate the Company for such breach. Accordingly, Employee
agrees that, in the event of a breach or threatened breach by Employee of any
of the provisions of this Agreement, the Company, in addition to and not in
limitation of any other rights, remedies or damages available to the Company at
law or in equity, shall be entitled to a temporary restraining order,
preliminary injunction and permanent injunction in order to prevent or to
restrain any such breach by Employee, or by any or all of Employee's partners,
co-venturers, employers, employees, servants, agents, representatives and any
and all persons directly or indirectly acting for, on behalf of or with
Employee.
14. Materials. All notes, data, tapes, reference items, sketches,
drawings, memoranda, records and other materials in any way relating to any of
the Confidential Information or Intellectual Property or to the Company's
business shall belong exclusively to the Company and Employee agrees to turn
over to the Company all copies of such materials in Employee's possession or
under Employee's control at the request of the Company or, in the absence of
such a request, upon the termination of Employee's employment with the Company.
15. Remedies. Employee covenants and agrees that, if Employee
shall violate any of Employee's covenants or agreements under this Agreement,
the Company shall be entitled to an accounting and repayment from Employee of
all profits, compensation, royalties, commissions, remunerations or other
payments (collectively "Payments") which Employee realizes as a result of the
violative actions. Employee shall also reimburse the Company for all
reasonable costs and expenses (including reasonable attorneys fees) incurred in
pursuing its rights hereunder if Employee has violated this Agreement. Such
remedy shall be in addition to and not in limitation of any injunctive relief
or other rights or remedies to which the Company is or may be entitled at law
or in equity or otherwise under this Agreement, provided that recovery of any
Payments shall be reduced by the amount of any compensatory damages otherwise
recovered.
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16. Employee's Status. Except as expressly provided by terms of
this Agreement, nothing in this Agreement shall be construed as constituting a
commitment, guarantee, agreement or understanding of any kind or nature that
the Company shall continue to employ Employee, nor shall this Agreement affect
in any way the right of the Company to terminate the employment of Employee at
any time and for any reason whatsoever. No change of Employee's duties as an
employee of the Company shall result in, or be deemed to be, a modification of
the terms of this Agreement.
17. Notice. All notices, requests, demands and other
communications required by or permitted under this Agreement shall be in
writing and shall be sufficiently delivered if delivered by hand, by courier
service, or sent by registered or certified mail, postage prepaid, to the
parties at their respective addresses listed below:
(a) If to the Employee, to the address set out in the
beginning of this Agreement;
(b) If to the Company:
__________________________________________
BrightStar Information Technology Group, Inc.
00000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Either party may change such party's address by such notice
to the other parties.
18. Assignment. This Agreement is personal to the Employee, and
he shall not assign any of his rights or delegate any of his duties hereunder
without the prior written consent of the Company. Neither the employee nor his
spouse will have the right to commute, encumber, or otherwise dispose of any
prospective payments under this Agreement. The Company shall have the right to
assign this Agreement to a successor in interest in connection with a merger,
sale of substantially all assets, or the like; provided however, that an
assignment of this Agreement to an entity with operations, products or services
outside of the industries in which the Company is then active shall not be
deemed to expand the scope of Employee's covenant not to compete with such
operations, products or services without Employee's written consent.
19. Survival. The provisions of Sections 7 through 15 of this
Agreement shall survive the termination of the Employee's employment hereunder
in accordance with their terms, provided that all provisions of this Agreement
shall terminate five years after termination of employment (if not already
expired in accordance with their specific time of applicability) except with
respect to the resolution of any claims asserted prior to such termination.
20. Applicable Law. The substantive laws of the State of Texas,
excluding any law, rule or principle which might refer to the substantive law
of another jurisdiction, will govern the interpretation, validity and effect of
this Agreement without regard to the place of execution or the place for
performance thereof.
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21. Binding Upon Successors. This Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their
respective heirs, legal representatives, successors and permitted assigns.
22. Entire Agreement. This Agreement constitutes the entire
agreement between the Company and the Employee with respect to the terms of
employment of the Employee by the Company and supersedes all prior agreements
and understandings, whether written or oral, between them concerning such terms
of employment.
23. Waiver and Amendments; Cumulative Rights and Remedies.
(a) This Agreement may be amended, modified or
supplemented, and any obligation hereunder may be waived, only by a written
instrument executed by the parties hereto. The waiver by either party of a
breach of any provision of this Agreement shall not operate as a waiver of any
subsequent breach.
(b) No failure on the part of any party to exercise, and
no delay in exercising, any right or remedy hereunder shall operate as a waiver
hereof, nor shall any single or partial exercise of any such right or remedy by
such party preclude any other or further exercise thereof or the exercise of
any other right or remedy. All rights and remedies hereunder are cumulative
and are in addition to all other rights and remedies provided by law, agreement
or otherwise.
(c) The obligations of the parties hereto and such
parties' rights and remedies hereunder are in addition to all other obligations
of such parties, and all rights and remedies of such parties, created pursuant
to any other agreement.
24. Construction. Each party to this Agreement has had the
opportunity to review this Agreement with legal counsel. This Agreement shall
not be construed or interpreted against any party on the basis that such party
drafted or authored a particular provision, parts of or the entirety of this
Agreement.
25. Severability. In the event that any provision or provisions
of this Agreement is held to be invalid, illegal or unenforceable by any court
of law or otherwise, the remaining provisions of this Agreement shall
nevertheless continue to be valid, legal and enforceable as though the invalid
or unenforceable parts had not been included therein. In addition, in such
event the parties hereto shall negotiate in good faith to modify this Agreement
so as to effect the original intent of the parties as closely as possible with
respect to those provisions which were held to be invalid, illegal or
unenforceable.
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IN WITNESS WHEREOF, the Company and the Employee have executed this
Agreement under seal on the date first above written, to be effective as of
_______________, 199 .
BRIGHTSTAR INFORMATION TECHNOLOGY
GROUP, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
EMPLOYEE:
-----------------------------------------
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SCHEDULE A TO EMPLOYMENT AGREEMENT
----------------------------------
Name Position Salary Effective Date
Xxxxxxxx X. Xxxx President and Chief Operating Officer $ 175,000.00 January 1, 1998
Xxxxxxx Xxxxxx Executive Vice President and Chief $ 150,000.00O October 1, 1997
Operating Officer
Xxxxxx X. Xxxxxx Executive Vice President and Chief $ 150,000.00 August 16, 1997
Financial Officer
Xxxxxx Xxxxxxx Executive Vice President of Sales and $ 150,000.00 January 1, 1998
Marketing and Secretary
