AMENDED AND RESTATED EMPLOYMENT AGREEMENT
|
AMENDED
AND RESTATED EMPLOYMENT
AGREEMENT
THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (as amended and restated, this
“Agreement”), made as of the 8th day of November, 2005 (the “Effective Date”),
by and between GoAmerica, Inc., a Delaware corporation (the “Company”), and
Xxxxx Xxxx (the “Employee”).
RECITALS
WHEREAS,
the Company desires to secure the continued employment of the Employee in
accordance with the provisions of this Agreement;
WHEREAS,
the Employee desires and is willing to accept continued employment with the
Company in accordance herewith; and
WHEREAS,
the Company and the Employee desire to amend and restate the Employee’s
Employment Agreement, dated as of May 6, 2002, hereby.
AGREEMENT
NOW
THEREFORE, in consideration of the premises and mutual covenants contained
herein, and intending to be legally bound hereby, the parties hereto agree
as
follows:
1. Term.
The
Company hereby agrees to continue to employ the Employee and the Employee
hereby
agrees to continue to serve the Company, pursuant to the terms and conditions
of
this Agreement as of the Effective Date, in the position of Chief Technology
Officer of the Company (or, subject to the Employee’s consent, which shall not
be unreasonably withheld, in such alternate position of equal or greater
responsibility as the Company shall determine in its reasonable discretion
in an
area of the Employee’s primary competency). The initial term of this Agreement
shall commence on the Effective Date and shall expire on the two year
anniversary thereof (the “Initial Term”). On the expiration of the Initial Term
and on each yearly anniversary thereof, the Agreement shall automatically
renew
for an additional one-year period (each a “Renewal Term”), unless sooner
terminated or amended as provided herein in accordance with the provisions
of
Section 5 or unless either party notifies the other party in writing
of its
intentions not to renew this Agreement not less than ninety (90) days prior
to
such expiration date or anniversary, as the case may be.
2. Positions
and Duties.
The
Employee’s duties hereunder shall be those which shall be prescribed from time
to time by the Chief Executive Officer of the Company in accordance with
the
bylaws of the Company and which customarily accompany the title of Chief
Technology Officer of a company of similar size and purpose. The employee
will
also hold such other executive offices in the Company and its subsidiaries
to
which he may be elected, appointed or assigned by the Chief Executive Officer
or
the Board of Directors. The Employee shall devote his full working time,
energy
and skill (reasonable absences for vacations and illness excepted), to the
business of the Company as is necessary in order to perform such duties
faithfully, competently and diligently; provided, however, that notwithstanding
any provision in this Agreement to the contrary, the Employee shall not be
precluded from devoting reasonable periods of time required for serving as
a
member of boards of companies which have been approved by the Board of Directors
of the Company or participating in non-business organizations so long as
such
memberships or activities do not interfere with the performance of the
Employee’s duties hereunder.
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3. Compensation.
During
the term of this Agreement, the Employee shall receive, for all services
rendered to the Company hereunder, the following (hereinafter referred to
as
“Compensation”):
(a) Base
Salary.
For the
term hereof, the Employee shall be paid an annual base salary equal to $165,000;
provided, however, that the Employee’s annual base salary shall be increased to
$185,000 as of the end of the Company’s first fiscal quarter after the Effective
Date for which the Company reports (or would have been able to report but
for
extraordinary charges that are not expected to recur) EBIDTA profitability
as
determined by the Company’s independent auditors. The Employee’s annual base
salary shall be payable in equal installments in accordance with the Company's
general salary payment policies but no less frequently than monthly. Such
base
salary shall be reviewed no less than annually and any increases in the amount
thereof shall be determined by the Board of Directors of the Company or a
compensation committee formed by the Board of Directors (the “Compensation
Committee”) of the Company no later than at and as of each May 6th during the
term hereof. Such base salary may be decreased only if done in conjunction
with
similar pro rata decreases in base salary for other executives within the
Company.
(b) Bonuses.
For the
fiscal year ending December 31, 2006 and each fiscal year thereafter, the
Employee shall be eligible to receive an annual bonus according to a mutually
agreed upon bonus plan to be established by Board of Directors of the Company
or
the Compensation Committee thereof. Nothing herein shall be construed as
a
guarantee of any such bonus.
(c) Incentive
Compensation.
The
Employee shall be eligible for awards from the Company’s incentive compensation
plans, including without limitation any stock award plans applicable to high
level executive officers of the Company or to key employees of the Company
or
its subsidiaries, in the discretion of the Company’s Board of Directors or the
Compensation Committee thereof.
In
addition to the general incentive compensation contemplated in the immediately
preceding paragraph, the Company is granting to the Employee, as of the
Effective Date, fifty five thousand (55,000) shares of the Company’s common
stock, which shall vest in one third (1/3) increments on each of the first,
second and third year anniversaries of the Effective Date, unless otherwise
provided in this Agreement.
(d) Benefits.
The
Employee and his “dependents,” as that term may be defined under the applicable
benefit plan(s) of the Company, shall be included, to the extent eligible
thereunder, in any and all plans, programs and policies which provide benefits
for employees and their dependents. Such plans, programs and policies may
include health care insurance, long-term disability plans, life insurance,
supplemental disability insurance, supplemental life insurance, holidays
and
other similar or comparable benefits made available to the Company’s
employees.
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(e) Expense
Allowances.
Subject
to and in accordance with the Company’s policies and procedures and in
accordance with the Company’s payroll practices but no less frequently than
monthly, the Company shall provide to the Employee (i) a maximum discretionary
expense allowance of up to nine thousand dollars ($9,000.00) per Company
fiscal
year (pro-rated for any partial period) to be used by Employee for his own
automobile lease or similar finance payments, insurance, club and organization
dues or memberships, travel upgrades, technology devices, and similar executive
perquisites and related taxes during the term of this Agreement, and, in
addition to the foregoing, (ii) reimbursement for all reasonable and necessary
business-related expenses incurred by the Employee on behalf of the Company
or
any of its subsidiaries, including directly related tolls, gasoline and parking,
upon presentation of itemized accounts. The Employee
shall not, directly or indirectly, bind or make the Company a party to, or
execute in the name of any Company entity or under the appearance of corporate
or agency authority, any agreement or similar arrangement or understanding,
express or implied, relating to payments to third parties of any of the amounts
contemplated in or relating to clause (i) of the immediately foregoing sentence
without the prior express written approval of the Company’s Board of Directors
or the Compensation Committee thereof.
4. Absences.
The
Employee shall be entitled to vacations of no less than four (4) weeks per
calendar year, absences because of illness or other incapacity, and such
other
absences, whether for holiday, personal time, or for any other purpose, as
set
forth in the Company’s employment manual or current procedures and policies, as
the case may be, as the same may be amended from time-to-time.
5. Termination.
In
addition to the events of termination and expiration of this Agreement provided
for in Section 1 hereof, the Employee’s employment hereunder may be
terminated only as follows:
(a) Without
Cause.
The
Company may terminate the Employee’s employment hereunder without cause only
upon action by the Board of Directors of the Company, and upon no less than
ninety (90) days prior written notice to the Employee. The Employee may
terminate employment hereunder without cause upon no less than ninety (90)
days
prior written notice to the Company.
(b) For
Cause, by the Company.
The
Company may terminate the Employee’s employment hereunder for cause immediately
and with prompt notice to the Employee, which cause shall be determined in
good
faith solely by the Board of Directors of the Company. “Cause” for termination
shall include, but is not limited to, the following conduct of the Employee:
(i) Material
breach of any provision of this Agreement by the Employee, which breach shall
not have been cured by the Employee within sixty (60) days of receipt of
written
notice of said breach (or such shorter period within which to cure as is
reasonable under the circumstances if the Company reasonably expects irreparable
injury from a delay of sixty (60) days), including reasonable detail of the
breach and the conduct required to cure, unless the nature of the breach
is such
that it cannot reasonably be expected to be cured within such time;
(ii) Gross
misconduct as an employee of the Company, including but not limited to:
misappropriating any funds or property of the Company; attempting to willfully
obtain any personal profit from any transaction in which the Employee has
an
interest which is adverse to the interests of the Company; or any other act
or
omission which substantially impairs the Company's ability to conduct its
ordinary business in its usual manner;
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(iii) Continuing
unreasonable neglect or refusal to perform the duties assigned to the Employee
under or pursuant to this Agreement;
(iv) Conviction
of a felony (including pleading guilty or no contest to a felony or lesser
charge which results from plea bargaining); or
(v) Any
other
act or omission which subjects the Company or any of its subsidiaries to
substantial public disrespect, scandal or ridicule.
(c) For
Good Reason by Employee.
The
Employee may terminate employment hereunder for Good Reason by written notice
to
the Company no more than thirty (30) days after the occurrence of the event
constituting Good Reason. Such notice shall state an effective date no earlier
than thirty (30) days after the date notice is given to the Company, and
the
Company shall have ten (10) business days from its receipt of such notice
within
which to cure and, in the event of such cure, Employee’s notice in such case
shall be of no further force or effect. “Good reason” for termination by the
Employee shall arise from the following conduct of the Company or events
without
the Employee’s consent (other than in connection with or subsequent to the
termination or suspension of Employee’s employment or duties for Cause or in
connection with the Employee’s Disability and excluding any isolated action not
taken in bad faith and which is promptly remedied by the Company after receipt
of notice thereof from the Employee):
(i) Material
breach of any provision of this Agreement by the Company, which breach shall
not
have been cured by the Company within ten (10) business days of receipt of
written notice of said breach;
(ii) Failure
to maintain the Employee in a position commensurate with that referred to
in
Section 1 of this Agreement, the assignment to the Employee of any duties
inconsistent therewith or the Employee’s experience or abilities or the
withdrawal of a material portion of the Employee’s duties (other than in
connection with the disposition or termination of any Company business which
does not constitute a “Change of Control” hereunder), or a change in the
Employee’s reporting relationship such that the Employee does not report
directly to the Chief Executive Officer;
(iii) A
requirement that the Employee must, or in order to perform effectively the
Employee should reasonably expect to, perform his duties hereunder at a location
outside of a 25 mile radius from Hackensack, New Jersey other than
(A) business travel consistent with that required of employees with
similar
positions at other companies similar in size and stage of development to
the
Company, and (B) activities required in connection with the sale or
merger
of the Company, provided that such activities are not required for more than
three consecutive months; or
(iv) Upon
a
“Change of Control”, which shall mean the first to occur of any of the
following:
(aa)
any
“person” (as defined in Section 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”)), excluding for this purpose, (i) the
Company or any subsidiary of the Company, or (ii) any employee benefit plan
of
the Company or any subsidiary of the Company, or any person or entity organized,
appointed or established by the Company for or pursuant to the terms of any
plan
which acquires beneficial ownership of voting securities of the Company,
is or
becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly of securities of the Company representing more
than
30% of the combined voting power of the Company’s then outstanding securities;
provided, however, that no Change of Control will be deemed to have occurred
as
a result of a change in ownership percentage resulting solely from an
acquisition of securities by the Company, the grant or exercise of any stock
option, stock award, stock purchase right or similar equity incentive, or
the
continued beneficial ownership by any party of voting securities of the Company
which such party beneficially owned as of the date hereof; or
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(bb)
persons, who, as of the Effective Date constitute the Board (the “Incumbent
Directors”) cease for any reason, including without limitation, as a result of a
tender offer, proxy contest, merger or similar transaction, to constitute
at
least a majority thereof, provided that any person becoming a director of
the
Company subsequent to the Effective Date shall be considered an Incumbent
Director if such person’s election or nomination for election was approved by a
vote of at least 50% of the Incumbent Directors; but provided further, that
any
such person whose initial assumption of office is in connection with an actual
or threatened election contest relating to the members of the Board or other
actual or threatened solicitation of proxies or consents by or on behalf
of a
“person” (as defined in Section 13(d) and 14(d) of the Exchange Act) other than
the Board, including by reason of agreement intended to avoid or settle any
such
actual or threatened contest or solicitation, shall not be considered an
Incumbent Director; or
(cc)
consummation of a reorganization, merger or consolidation or sale or other
disposition of at least 80% of the assets (other than cash and cash equivalents)
of the Company (a “Business Combination”), in each case, unless, following such
Business Combination, all or substantially all of the individuals and entities
who were the beneficial owners of outstanding voting securities of the Company
immediately prior to such Business Combination beneficially own, directly
or
indirectly, more than 50% of the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors,
as
the case may be, of the company resulting from such Business Combination
(including, without limitation, a company which, as a result of such
transaction, owns the Company or all or substantially all of the Company’s
assets either directly or through one or more subsidiaries) in substantially
the
same proportions as their ownership, immediately prior to such Business
Combination, of the outstanding voting securities of the Company;
or
(dd)
approval by the stockholders of the Company of a complete liquidation or
dissolution of the Company.
Notwithstanding
anything in the foregoing, the definition of “Change of Control” as used in this
Section 5(c)(iv) shall not be deemed to include the transactions contemplated
by
the Agreement and Plan of Merger, dated July 6, 2005, between the Company
and
two of its subsidiaries, on the one hand, and Hands On Video Relay Services,
Inc., Hands On Sign Language Services, Inc., Xxxxxx X. Xxxxx and Xxxxxx X.
Xxxxx, on the other hand.
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(d) Death.
The
period of active employment of the Employee hereunder shall terminate
automatically in the event of his death.
(e) Disability.
In the
event that the Employee shall be unable to perform duties hereunder for a
period
of one hundred eighty (180) consecutive calendar days or one hundred eighty
(180) work days within any 360 consecutive calendar days, by reason of
disability as a result of illness, accident or other physical or mental
incapacity or disability, the Company may, in its discretion, by giving written
notice to the Employee, terminate the Employee's employment hereunder as
long as
the Employee is still disabled on the effective date of such
termination.
(f) Mutual
Agreement.
This
Agreement may be terminated at any time by mutual agreement of the Employee
and
the Company.
6. Compensation
in the Event of Termination.
In the
event that the Employee’s employment pursuant to this Agreement terminates or is
not renewed by the Company, the Company shall pay the Employee compensation
as
set forth below:
(a) By
Employee for Good Reason; Termination by Company Without Cause;
Non-Renewal.
Except
as expressly noted otherwise, in the event this Agreement is terminated by
the
Employee for Good Reason pursuant to Section 5(c) hereof; by the Company
without Cause pursuant to Section 5(a) hereof; or if the Company elects
not
renew this Agreement, then:
(i) the
Company shall continue to pay to the Employee his annual base salary and
all
other compensation and benefits provided for in Section 3 hereof (except
those benefits which the Company may not properly provide, pursuant to any
applicable Company benefit plan, policy or law) in the same manner as before
termination, for a period of one year (except in the event of non-renewal,
in
which case the period shall be six months, the “Severance Period”). The
Company’s obligation to make payments to the Employee during the Severance
Period shall not be offset by any income the Employee receives from sources
other than the Company for work activity conducted by the Employee during
the
Severance Period. To the extent the Employee receives any medical or health
benefits pursuant to this section, such benefits shall be provided as a
reimbursement (or direct payment at the sole election of the Company) to
the
Employee of payments made pursuant to an election to continue benefits under
COBRA.
(ii) Notwithstanding
the terms of any stock award agreement to which the Employee is a party to
the
contrary, (A) in the event of termination by the Employee for Good
Reason
only, all stock options, restricted stock and similar awards grants issued
to
the Employee shall immediately vest in the Employee, and (B) the Employee
may exercise any or all such options at any time within one (1) year of the
Employee’s termination date;
(iii) the
payments, rights and entitlements described in Section 6(a)(i) and
6(a)(ii)
hereof, if any, shall only be made if the Employee shall first have executed
and
delivered to the Company a valid general release of claims with respect to
his
employment and the termination of such employment, in a form reasonably
acceptable to the Company.
(b) By
Company Upon Termination of Agreement Due to Employee's Death or
Disability.
In the
event of the Employee's death or if the Company shall terminate the Employee's
employment hereunder for disability pursuant to Section 5(e) hereof,
then:
(i) in
the
event of a termination pursuant to Section 5(e) hereof, if eligible,
the
Employee shall be entitled to benefits under any long-term disability plan
of
the Company covering the Employee then in effect;
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(ii) To
the
extent the Employee has not received or does not receive disability or death
benefits pursuant to any Company-paid benefit or similar plan of the Company
covering the Employee then in effect pursuant to the Employee Retirement
Income
Security Act of 1974, as amended, the Company shall continue to pay the base
salary payable hereunder at the then current rate for one (1) year following
such death or such termination, to the Employee or his personal representative,
as applicable; and
(iii) all
other
compensation and benefits provided for in Section 3, other than any
amounts
due pursuant to Subsection 3(d) of this Agreement shall cease upon such
termination.
(c) By
Company for Cause or By Employee Without Good Reason.
In the
event that: (i) the Company shall terminate the Employee's employment
hereunder for Cause pursuant to Section 5(b) hereof; or (ii) the
Employee shall terminate employment hereunder without Good Reason as defined
in
Section 5(c) hereof, then the Employee’s rights hereunder shall cease as of
the effective date of the termination, including, without limitation, the
right
to receive the Base Salary and all other compensation or benefits provided
for
in this Agreement, except that the Company shall pay the Employee salary
and
other compensation which may have been earned and is due and payable but
which
has not been paid as of the date of termination.
7. Effect
of Termination.
In the
event of expiration or early termination of this Agreement as provided herein,
neither the Company nor the Employee shall have any remaining duties or
obligations hereunder except that:
(a) The
Company shall:
(i) Pay
the
Employee's accrued salary and any other accrued benefits under Section 3
hereof;
(ii) Reimburse
the Employee for expenses already incurred in accordance with Section 3(e)
hereof;
(iii) To
the
extent required by law, pay or otherwise provide for any benefits, payments
or
continuation or conversion rights in accordance with the provisions of any
benefit plan of which the Employee or any of his dependents is or was a
participant; and
(iv) Pay
the
Employee or his beneficiaries any compensation due pursuant to Section 6
hereof; and
(b) The
Employee shall remain bound by the terms of Section 8 hereof and
Exhibit A
attached
hereto.
8. Restrictive
Covenant.
(a) The
Employee acknowledges and agrees that he has access to secret and confidential
information of the Company and its subsidiaries and that the following
restrictive covenant is necessary to protect the interests and continued
success
of the Company. Except as otherwise expressly consented to in writing by
the
Company, until the termination of the Employee’s employment (for any reason and
whether such employment was under this Agreement or otherwise) and for a
period
of one (1) year thereafter (the “Restricted Period”), provided Employee receives
the compensation specified in Section 6(a), if applicable, the Employee shall
not, directly or indirectly, acting as an employee, owner, shareholder, partner,
joint venturer, officer, director, agent, salesperson, consultant, advisor,
investor or principal of any corporation or other business entity, engage,
in
any state or territory of the United States of America or other country where
the Company is actively doing business, in direct or indirect competition
with
the business conducted by the Company or activities in which the Company
plans
to conduct business.
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(b) Nothing
in this Section 8, whether express or implied, shall prevent the Employee
from being a holder of securities of a company whose securities are registered
under Section 12 of the Securities Exchange Act of 1934, as amended,
or any
privately held company; provided, however, that during the term of this
agreement, and with respect to any company which may be deemed to directly
or
indirectly compete with the business conducted by the Company or with the
activities which the Company plans to conduct, the Employee holds of record
and
beneficially less than one percent (1%) of the votes eligible to be cast
generally by holders of securities of such company for the election of
directors.
(c) The
Employee, as a condition of his continued employment, acknowledges and agrees
that he has reviewed and signed and will continue to be bound by all of the
provisions set forth in Exhibit A
attached
hereto, which is incorporated herein by reference and made a part hereof
as
though fully set forth herein, during the term of this Agreement, and any
time
hereafter.
(d) The
Employee acknowledges and agrees that in the event of a breach or threatened
breach of the provisions of this Section 8 or Exhibit A
by
Employee the Company may suffer irreparable harm and therefore, the Company
shall be entitled, to the extent permissible by law, immediately to cease
to pay
or provide the Employee any compensation being, or to be, paid or provided
to
him pursuant to Sections 3 or 6 of this Agreement, and also to obtain
immediate injunctive relief restraining the Employee from conduct in breach
or
threatened breach of the covenants contained in this Section 8. Nothing herein
shall be construed as prohibiting the Company from pursuing any other remedies
available to it for such breach or threatened breach, including the recovery
of
damages from the Employee.
9. Insurance.
During
the term of this Agreement, the Company shall maintain standard directors
and
officers liability insurance in a face amount of no less than
$10,000,000.
10. No
Conflicts.
The
Employee has represented and hereby represents to the Company that the
execution, delivery and performance by the Employee of this Agreement do
not
conflict with or result in a violation or breach of, or constitute (with
or
without notice or lapse of time or both) a default under any contract, agreement
or understanding, whether oral or written, to which the Employee is a party
or
of which the Employee is or should be aware and that there are no restrictions,
covenants, agreements or limitations on his right or ability to enter into
and
perform the terms of this Agreement, and agrees to save the Company harmless
from any liability, cost or expense, including attorney’s fees, based upon or
arising out of any such restrictions, covenants, agreements, or limitations
that
may be found to exist.
11. Waiver.
The
waiver by a party hereto of any breach by the other party hereto of any
provision of this Agreement shall not operate or be construed as a waiver
of any
subsequent breach by a party hereto.
12. Assignment.
This
Agreement shall be binding upon and inure to the benefit of the successors
and
assigns of the Company, and the Company shall be obligated to require any
successor to expressly assume its obligations hereunder and shall have the
right
to assign its rights to enforce the provisions of Section 8 and
Exhibit A
to any
successor. This Agreement shall inure to the benefit of and be enforceable
by
the Employee or his legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. The Employee may
not
assign any of his duties, responsibilities, obligations or positions hereunder
to any person and any such purported assignment by him shall be void and
of no
force and effect.
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13. Notices.
Any
notices required or permitted to be given under this Agreement shall be
sufficient if in writing, and if personally delivered or when sent by first
class certified or registered mail, postage prepaid, return receipt
requested--in the case of the Employee, to his residence address as set forth
below, and in the case of the Company, to the address of its principal place
of
business as set forth below, in care of the Chief Executive Officer and Chairman
of the Board of Directors of the Company or to such other person or at such
other address with respect to each party as such party shall notify the other
in
writing.
14. Construction
of Agreement.
(a) Governing
Law.
This
Agreement shall be governed by and its provisions construed and enforced
in
accordance with the internal laws of the State of New Jersey without reference
to its principles regarding conflicts of law.
(b) Severability.
In the
event that any one or more of the provisions of this Agreement shall be held
to
be invalid, illegal or unenforceable, the validity, legality or enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
(c) Headings.
The
descriptive headings of the several paragraphs of this Agreement are inserted
for convenience of reference only and shall not constitute a part of this
Agreement.
15. Entire
Agreement.
This
Agreement and Exhibit A
hereto
contains the entire agreement of the parties concerning the Employee’s
employment and all promises, representations, understandings, arrangements
and
prior agreements on such subject, including but not limited to, the Employment
Agreement, are merged herein and superseded hereby. The provisions of this
Agreement may not be amended, modified, repealed, waived, extended or discharged
except by an agreement in writing signed by the party against whom enforcement
of any amendment, modification, repeal, waiver, extension or discharge is
sought. No person acting other than pursuant to a resolution of the Board
of
Directors shall have authority on behalf of the Company to agree to amend,
modify, repeal, waive, extend or discharge any provision of this Agreement
or
anything in reference thereto or to exercise any of the Company's rights
to
terminate or to fail to extend this Agreement.
* * * * *
9
IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed and
attested by its duly authorized officers, and the Employee has set his hand,
all
as of the day and year first above written.
| ATTEST: | GoAmerica, Inc. | |
|
By:
|
||
| Xxxxxx X. Xxxx | ||
|
Chief
Executive Officer
|
||
| WITNESS: | EMPLOYEE | |
| Xxxxx Xxxx | ||
| Address: | ||
10
EXHIBIT A
GoAmerica,
Inc.
EMPLOYEE’S
INVENTION ASSIGNMENT AND CONFIDENTIALITY AGREEMENT
In
consideration of my employment or continued employment by GoAmerica, Inc.,
a
Delaware corporation or any subsidiary or parent corporation thereof (the
“Company”), I hereby represent and agree as follows:
1. I
understand that the Company is engaged in the business of providing
communications services to the deaf and hard of hearing markets and related
services and that I may have access to or acquire information with respect
to
Confidential Information (as defined below), including processes and methods,
development tools, scientific, technical and/or business innovations.
2. Disclosure
of Innovations.
I agree
to disclose in writing to the Company all inventions, improvements and other
innovations of any kind that I may make, conceive, develop or reduce to
practice, alone or jointly with others, during the term of my employment
with
the Company, whether or not they are related to my work for the Company and
whether or not they are eligible for patent, copyright, trademark, trade
secret
or other legal protection (“Innovations”). Examples of Innovations shall
include, but are not limited to, discoveries, research, inventions, formulas,
techniques, processes, tools, know-how, marketing plans, new product plans,
production processes, advertising, packaging and marketing techniques and
improvements to computer hardware or software.
3. Assignment
of Ownership of Innovations.
I agree
that all Innovations will be the sole and exclusive property of the Company
and
I hereby assign all of my rights, title or interest in the Innovations and
in
all related patents, copyrights, trademarks, trade secrets, rights of priority
and other proprietary rights to the Company. At the Company's request and
expense, during and after the period of my employment with the Company, I
will
assist and cooperate with the Company in all respects and will execute
documents, and, subject to my reasonable availability, give testimony and
take
further acts requested by the Company to obtain, maintain, perfect and enforce
for the Company patent, copyright, trademark, trade secret and other legal
protection for the Innovations. I hereby appoint the President and Chief
Executive Officer of the Company as my attorney-in-fact to execute documents
on
my behalf for this purpose.
4. Protection
of Confidential Information of the Company.
I
understand that my work as an employee of the Company creates a relationship
of
trust and confidence between myself and the Company. During and after the
period
of my employment with the Company, I will not use or disclose or allow anyone
else to use or disclose any “Confidential Information” (as defined below)
relating to the Company, its products, suppliers or customers except as may
be
necessary in the performance of my work for the Company or as may be authorized
in advance by appropriate officers of the Company. “Confidential Information”
shall include innovations, methodologies, processes, tools, business strategies,
financial information, forecasts, personnel information, customer lists,
trade
secrets and any other non-public technical or business information, whether
in
writing or given to me orally, which I know or have reason to know the Company
would like to treat as confidential for any purpose, such as maintaining
a
competitive advantage or avoiding undesirable publicity. I will keep
Confidential Information secret and will not allow any unauthorized use of
the
same, whether or not any document containing it is marked as confidential.
These
restrictions, however, will not apply to Confidential Information that has
become known to the public generally through no fault or breach of mine or
that
the Company regularly gives to third parties without restriction on use or
disclosure. Upon termination of my work with the Company, I will promptly
deliver to the Company all documents and materials of any nature pertaining
to
my work with the Company and I will not take with me any documents or materials
or copies thereof containing any Confidential Information.
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5. Other
Agreements.
I
represent that my performance of all the terms of this Agreement and my duties
as an employee of the Company will not breach any invention assignment
agreement, confidential information agreement, non-competition agreement
or
other agreement with any former employer or other party. I represent that
I have
not and will not bring with me to the Company or use in the performance of
my
duties for the Company any documents or materials of a former employer that
are
not generally available to the public.
6. Disclosure
of this Agreement.
I
hereby authorize the Company to notify others, including but not limited
to
customers of the Company and any of my future employers, of the terms of
this
Agreement and my responsibilities hereunder.
7. Injunctive
Relief.
I
understand that in the event of a breach or threatened breach of this Agreement
by me the Company may suffer irreparable harm and monetary damages alone
would
not adequately compensate the Company. The Company will therefore be entitled
to
injunctive relief to enforce this Agreement.
8. Enforcement
and Severability.
I
acknowledge that each of the provisions in this Agreement are separate and
independent covenants. I agree that if any court shall determine that any
provision of this Agreement is unenforceable with respect to its term or
scope
such provision shall nonetheless be enforceable by any such court upon such
modified term or scope as may be determined by such court to be reasonable
and
enforceable. The remainder of this Agreement shall not be affected by the
unenforceability or court ordered modification of a specific
provision.
9. Governing
Law.
I agree
that this Agreement shall be governed by and construed in accordance with
the
laws of the State of New Jersey.
10. Superseding
Agreement.
I
understand and agree that this Agreement, as Exhibit A to my Employment
Agreement with the Company, contains the entire agreement of the parties
with
respect to the subject matter hereof and supersedes all previous agreements
and
understandings between the parties with respect to its subject
matter.
11. Acknowledgments.
I
acknowledge that I have read this agreement, was given the opportunity to
ask
questions and sufficient time to consult an attorney and I have either consulted
an attorney or affirmatively decided not to consult an attorney. I understand
that this agreement is a part of and does not alter the terms of my Employment
Agreement with the Company. I also understand that my obligations under this
Agreement survive the termination of my employment with the
Company.
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