EXHIBIT 10.5
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), dated the 1st of December, 2001, is by
and between Indiginet, Inc., a Florida corporation, (Company), and Xxxxxxx X.
Xxxxxx (Employee), a Colorado, resident.
RECITALS
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A. Employee possesses certain unique skills, talents, contacts, judgment and
knowledge of the Company's businesses, strategies, ethics and objectives.
B. In order to provide for continuity in the executive management of the
Company, which continuity is deemed to be vital to the continued growth and
success of the Company, and in order that the Company may continue to avail
itself of the unique skills, talents, contacts, judgment and knowledge of
Employee, the Company desires to ensure the retention of Employee in the employ
of the Company.
C. Employee desires to be assured of duties and responsibilities commensurate
with Employee's education, experience and background, and salary, bonus,
incentive compensation and other benefits and perquisites at levels that reflect
Employee's anticipated future contributions to the Company.
IN CONSIDERATION of the foregoing premises and the parties' mutual covenants and
undertakings contained in this Agreement, the Company and Employee agree as
follows:
ARTICLE 1. DEFINITIONS
Capitalized terms used in this Agreement shall have their defined meaning
throughout the Agreement. The following terms shall have the meanings set forth
below, unless the context clearly requires otherwise.
1.1 "Agreement" means this Employment Agreement, as from time to time amended.
1.2 "Base Salary" means the total annual cash compensation payable on a regular
periodic basis, without regard to voluntary or mandatory deferrals, as set forth
at paragraph 3.1 of this Agreement.
1.3 "Beneficiary" means the person or persons designated in writing to the
Company by Employee to receive benefits payable after Employee's death. In the
absence of such designation or in the event that all of the persons so
designated predecease Employee. Beneficiary means the executor, administrator or
personal representative of Employee's estate.
1.4 "Board" means the Board of Directors of the Company.
1.5 "Cause" has the meaning set forth at paragraph 4.2 of this Agreement.
1.6 "Company" means all of the following, jointly and severally: (a) Indiginet,
Inc.; (b) any Subsidiary; and (c) any Successor.
1.7 "Confidential Information: means information that is proprietary to the
Company or proprietary to others and entrusted to the Company, whether or not
trade secrets. Confidential Information includes, but is not limited to,
information relating to business plans and to business as conducted or
anticipated to be conducted, and to past or current or anticipated products.
Confidential Information also includes, without limitation, information
concerning research, development, purchasing, accounting, marketing, selling and
services. All information that has a reasonable basis to consider confidential
is Confidential Information, whether or not originated by and without regard to
the manner in which Employee obtains access to this and any other proprietary
information.
1.8 "Date of Termination" has the meaning set forth at paragraph 4.6(b) of this
Agreement.
1.9 "Disability" means the unwillingness or inability of Employee to perform
Employee's duties under this Agreement because of incapacity due to physical or
mental illness, bodily injury or disease for a period of four (4) months.
1.10 "Employee" means Xxxxxxx X. Xxxxxx.
1.11 "Good Reason" has the meaning set forth at paragraph 4.3 of this Agreement.
1.12 "Notice of Termination" has the meaning set forth at paragraph 4.6(a) of
this Agreement.
1.13 "Plan" means any bonus or incentive compensation agreement, plan, program,
policy or arrangement sponsored, maintained or contributed to by the Company, to
which the Company is a party or under which employees of the Company are
covered, including, without limitation, any stock option, restricted stock or
any other equity-based compensation plan, annual or long-term incentive (bonus)
plan, and any employee benefit plan, such as a thrift, pension, profit sharing,
deferred compensation, medical, dental, disability, accident, life insurance,
automobile allowance, perquisite, fringe benefit, vacation, sick or parental
leave, severance or relocation plan or policy or any other agreement, plan,
program, policy or arrangement intended to benefit employees or executive
officers of the Company.
1.14 "Subsidiary" means any corporation, at least a majority of whose securities
having ordinary voting power for the election of directors (other than
securities having such power only by reason of the occurrence of a contingency),
at the time owned by the Company and/or one (1) or more Subsidiaries.
1.15 "Successor" has the meaning set forth at paragraph 7.2 of this Agreement.
1.16 "Inventions" means ideas, improvements and discoveries, whether or not such
are patentable or copyrightable, and whether or not in writing or reduced to
practice.
1.17 "Works of Authorship" means writings, drawings, software, semiconductor
mask works, and any other works of authorship, whether or not such are
copyrightable.
ARTICLE 2. EMPLOYMENT, DUTIES AND TERM
2.1 EMPLOYMENT. Upon the terms and conditions set forth in this Agreement, the
Company hereby employs Employee, and Employee accepts such employment, as
President. Except as expressly provided herein, termination of this Agreement by
either party or by mutual agreement of the parties shall also terminate
Employee's employment by Company.
2.2 DUTIES. During the term of this Agreement, and excluding any periods of
vacation, disability or other leave to which Employee is entitled, Employee
agrees to devote full time attention and time during normal business hours to
the business and affairs of the Company and to the extent necessary to discharge
the responsibilities assigned to Employee hereunder and under the Company's
bylaws, as amended from time to time, to use Employee's reasonable best efforts
to perform faithfully and efficiently such responsibilities. During the term of
this Agreement, it shall not be a violation of this Agreement to serve on
corporate, civic or charitable boards or committees, deliver lectures, fulfill
speaking engagements or teach at educational institutions and manage personal
investments, so long as such activities do not significantly interfere with the
performance of Employee's responsibilities as an employee of the Company in
accordance with this Agreement. It is expressly understood and agreed that to
the extent that any such activities have been conducted by Employee prior to the
date of this Agreement, the continued conduct of such activities (or the conduct
of activities similar in nature and scope thereto) subsequent to the date of
this Agreement shall not thereafter be deemed to interfere with the performance
of Employee's responsibilities to the Company. Employee shall comply with the
Company's policies and procedures; provided, that to the extent such policies
and procedures are inconsistent with this Agreement, the provisions of this
Agreement shall control.
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2.3 CERTAIN PROPRIETARY INFORMATION. If Employee possesses any proprietary
information of another person or entity as a result of prior employment or
relationship, Employee shall honor any legal obligation that has been entered
into with that person or entity with respect to such proprietary information.
2.4 TERM. Subject to the provisions of Article 4, the term of employment of
under this Agreement shall continue until two (2) years from the date first set
forth. The terms of the Agreement shall require renegotiation and this current
Agreement will not automatically renew without the written consent of the
Parties. The Agreement can be renewed with the written consent of both parties.
2.5 RETURN OF PROPRIETARY PROPERTY. Employee agrees that all property in
Employee's possession belonging to Company, including, without limitation, all
documents, reports, manuals, memoranda, computer print-outs, customer lists,
credit cards, keys, identification, products, access cards, automobiles and all
other property relating in any way to the business of the Company are the
exclusive property of the Company, even if Employee authored, created or
assisted in authoring or creating, such property. Employee shall return to the
Company all such documents and property immediately upon termination of
employment or at such earlier time as the Company may reasonably request.
ARTICLE 3. COMPENSATION, BENEFITS AND EXPENSES
3.1 BASE SALARY. During the term of Employee's employment under this Agreement
and for as long thereafter as required pursuant to Article 4, the Company shall
pay to Employee a monthly Base Salary of $10,416.67 during the first twelve (12)
months of the term and $12,500.00 during the second twelve (12) months of the
term, or at such higher rate as may from time to time be approved by the Board.
Such Base Salary is to be paid in substantially equal regular periodic payments
in accordance with the Company's regular payroll practices. If Employee's Base
Salary is increased from time to time during the term of Employee's employment
under this Agreement, the increased amount shall become the Base Salary for the
remainder of the term and any extensions of Employee's term of employment under
this Agreement and for as long thereafter as required pursuant to Article 4,
subject to any subsequent increases.
3.1.1 COMPANY STOCK OPTIONS. The Company will provide to Employee from time to
time stock options under the Company's Incentive Stock Option Plan. Upon
implementation of the Company's Incentive Stock Option Plan, Employee initially
will have the option to purchase a total of 11,175,300 shares of the Company's
common stock ("Common Stock"), which shares will vest in accordance with, and be
further subject to, the terms and conditions of the Incentive Stock Option Plan.
The grant of the initial options will be no later than December 31, 2002. The
exercise price will be $0.10 per share.
3.1.2 TERMINATION ALLOWANCE. Should the Employee be terminated from employment
of the Company by the Company during the first year of employment, the Company
shall continue to pay to Employee his Base Salary as well as the continuation of
Employee's benefits for a period of six (6) months ("Termination Allowance").
The payments shall be made periodically or in one lump sum at the sole
discretion of the Company. This provision will not be effective if the Company
terminates the Employee for Cause.
3.1.3 DEFERRED COMPENSATION. In addition to all other compensation, the Company
shall pay to Employee the sum of $25,000 (less applicable withholding amounts)
each year on the anniversary date of this Agreement.
3.2 OTHER COMPENSATION AND BENEFITS. In addition, the Company shall provide to
Employee health and dental insurance coverage of Employee's immediate family in
accordance with the Company's Plans and life insurance on Employee in the amount
of $100,000 with the cost of the physical to be borne by the Company. Employee
shall also receive an annual allowance of $1,000.00 for expenses relating to
legal, financial planning and tax assistance; provided, that, Employee use firms
associated with the Company unless such firm is unable to represent Employee as
a result of any rules governing professional responsibility. Employee shall be
entitled to three (3) weeks of paid vacation each year which may be accrued into
the second year and must be used. Employee shall not be entitled to cash in lieu
of vacation. Nothing paid to Employee under any Plan presently in effect or made
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available in the future shall be deemed to be in lieu of the Base Salary,
bonuses, incentives or compensation of any other nature otherwise payable to
Employee.
3.3 BUSINESS EXPENSES. During the term of Employee's employment under this
Agreement and as for as long thereafter as required pursuant to Article 4, the
Company shall, in accordance with, and to the extent of, its uniform policies in
effect from time to time, bear all ordinary and necessary business expenses
incurred by Employee in performing Employee's duties as an employee of the
Company, including, without limitation, all travel and living expenses when away
from home on business in the service of the Company. The Company will also
reimburse employee for business use of personal vehicle according to the
Companies expense policies. All such reimbursement shall be made only upon
receipt by the Company of a properly documented expense report.
3.4 OFFICE AND FACILITIES. During the term of Employee's employment under this
Agreement, the Company shall furnish Employee with office space, and secretarial
service, together with such other reasonable facilities and services as are
suitable, necessary and appropriate in the Denver, Colorado metropolitan area.
ARTICLE 4. EARLY TERMINATION
4.1 EARLY TERMINATION. Subject to the respective continuing obligations of the
parties pursuant to Article 5, this Article 4 sets forth the terms for early
termination of Employee's employment under this Agreement.
4.2 TERMINATION BY THE COMPANY FOR CAUSE. The Company may terminate this
Agreement for Cause. For purposes of this Agreement, "Cause" means (a) an act or
acts of personal dishonesty taken by and intended to result in substantial
personal enrichment of Employee at the expense of the Company, (b) violations by
Employee of Employee's obligations under paragraph 2.2 and which are not
remedied within a reasonable period after Employee's receipt of notice of such
violations from the Company or (C) the engaging by Employee in illegal conduct
that is materially and demonstrably injurious to the Company. For purposes of
this paragraph 4.2, no act, or failure to act, on Employee's part shall be
considered "dishonest," or "intended" unless done, or omitted to be done, by
Employee in bad faith and without reasonable belief that Employee's action or
omission was in, or not opposed to, the best interest of the Company. If the
employee is terminated under this provision will not result in Employee
receiving the Termination Allowance as detailed in preceding paragraph 3.1.2.
4.3 TERMINATION BY FOR GOOD REASON. Employee may terminate Employee's employment
under this Agreement for Good Reason in accordance with the ensuing provisions
of this paragraph 4.3. Termination by Employee for "Good Reason" shall mean
termination of employment based on any one or more of the following:
(a) An adverse change in Employee's status or position as an Employee of the
Company, including, without limitation, any adverse change in Employee's status
or position as a result of a material diminution in Employee's duties,
responsibilities or authority as of the date of this Agreement (except in
connection with the termination of Employee's employment for Cause in accordance
with paragraph 4.2 hereof or Disability or death in accordance with paragraph
4.4 hereof);
(b) A reduction by the Company in Employee's Base Salary as in effect on the
date of this Agreement or as the same may be increased from time to time or a
change in the eligibility requirements or performance criteria under any Plan
under which Employee is covered immediately prior to the date of this Agreement,
which adversely affects Employee;
(c) Without replacement by a Plan providing benefits to Employee equal to or
greater than those discontinued, the failure by the Company to continue in
effect, within its maximum stated term, any Plan in which Employee is
participating on the date of this Agreement or the taking of any action by the
Company that would adversely affect Employee's participation or materially
reduce Employee's benefits under any Plan;
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(d) The taking of any action by the Company that would materially, adversely
affect the physical conditions existing immediately prior to the date of this
Agreement in or under which Employee performs their employment duties;
(e) The Company's requiring Employee to be based anywhere other than where
Employee's office is located as of the date of this Agreement, except for
required travel on the Company's business to an extent substantially consistent
with the business travel obligations which undertook on behalf of the Company
prior to the date of this Agreement;
(f) The failure by the Company to obtain from any Successor an assent to this
Agreement contemplated by paragraph 7.2; or
(g) Any purported termination by the Company of this Agreement or the employment
of the Employee by the Company which is not expressly authorized by this
Agreement or any breach of this Agreement by the Company other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and which is
remedied by the Company within a reasonable period after the Company's receipt
of notice thereof from the Employee. Notwithstanding any other provision of this
Agreement to the contrary, any termination by Employee of employment for any
reason during the thirty (30) day period immediately following a
Change-of-Control of the Company shall be a termination for Good Reason.
4.4 TERMINATION IN THE EVENT OF DEATH OR DISABILITY. The term of Employee's
employment under this Agreement shall terminate in the event of Employee's death
or Disability.
4.5 TERMINATION BY MUTUAL AGREEMENT. The parties may terminate Employee's
employment under this Agreement at any time by mutual written agreement.
4.6 NOTICE OF TERMINATION; DATE OF TERMINATION; OFFER OF CONTINUED EMPLOYMENT.
The provisions of this paragraph 4.6 shall apply in connection with any early
termination of Employee's employment under this Agreement pursuant to this
Article 4.
(a) For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination provisions in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide the bases for such termination. Any purported
termination by the Company or by Employee pursuant to this Article 4 (other than
a termination by mutual agreement pursuant to paragraph 4.5 or death) shall be
communicated by written Notice of Termination to the other party hereto.
(b) For purposes of this Agreement, "Date of Termination" shall mean : (1) if
Employee's employment is terminated due to death, the last day of the month
first following the month during which Employee's death occurs; (2) if
Employee's employment is to be terminated for Disability, thirty (30) calendar
days after Notice of Termination is given; (3) if Employee's employment is
terminated by the Company for Cause or by or for Good Reason, the date specified
in the Notice of Termination; (4) if Employee's employment is terminated by
mutual agreement of the parties, the date specified in such agreement; or (5) if
Employee's employment is terminated for any other reason, the date specified in
the Notice of Termination, which in no event shall be a date earlier than ninety
(90) calendar days after the date on which a Notice of Termination is given,
unless an earlier date has been expressly agreed to by Company in writing either
in advance of, or after, receiving such Notice of Termination; provided however,
if within thirty (30) calendar days after giving of a Notice of Termination the
recipient of the Notice of Termination notifies the other party that a dispute
exists concerning the termination, then the Date of Termination shall be the
date on which the dispute is finally determined, whether by mutual written
agreement of the parties, by final and binding arbitration or by final judgment,
order or decree of a court of competent jurisdiction (the time for appeal
therefrom having expired or no appeal having been perfected). During the
pendency of any such dispute and until the dispute is resolved in the manner
provided in the immediately preceding sentence, the Company will continue to pay
all compensation and benefits to which Employee was entitled pursuant to Article
3 immediately prior to the time the Notice of Termination is given.
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(c) If this Agreement is terminated other than by reason of (1) the expiration
of the term hereof as described at paragraph 2.3, (2) Employee's Disability or
death, (3) Employee's termination for Cause pursuant to paragraph 4.2 which
termination for Cause has been agreed to by or has been determined in a
proceeding as provided in paragraph 7.3 or (4) by mutual agreement of the
parties pursuant to paragraph 4.5, may, but shall not be required to, not later
than ten (10) days after the Date of Termination, provide a written offer of
continued employment with the Company in accordance with the terms of this
Agreement which terms shall, in the case of a termination by Employee for Good
Reason pursuant to paragraph 4.3, include the Company taking any such steps as
may be necessary to eliminate, in a manner reasonably satisfactory to any
conditions which created such good reason for such termination. Within ten (10)
days of its receipt of such offer, the Company shall provide Employee with a
written acceptance or rejection of such offer. Failure of the Company to so
accept or reject such offer within such period shall be deemed to be a rejection
of such offer. The parties hereby acknowledge that Employee's failure to provide
such offer to the Company shall in no way impair, affect or constitute a waiver
of Employee's right to enforce the Company's obligations under this Agreement
and the Company shall not assert such failure as a defense in any action or
proceeding by to enforce the Company's obligation under this Agreement.
ARTICLE 5. CONFIDENTIAL INFORMATION
5.1 PROHIBITIONS AGAINST USE. Employee will not during or subsequent to the
termination of Employee's employment under this Agreement use or disclose, other
than in connection with Employee's employment with the Company, any Confidential
Information to any person not employed by the Company or not authorized by the
Company to receive such Confidential Information, without the prior written
consent of the Company. Employee will use reasonable and prudent care to
safeguard and protect and prevent the unauthorized use and disclosure of
Confidential Information. The obligations contained in this paragraph 5.1 will
survive for as long as the Company in its sole judgment considers the
information to be Confidential Information. The obligations under this paragraph
5.1 will not apply to any Confidential Information that is now or becomes
generally available to the public through no fault of Employee or to Employee's
disclosure of any confidential Information required by law or judicial or
administrative process.
ARTICLE 6. NON-COMPETITION
6.1 NON-COMPETITION. Subject to paragraph 6.2 and 6.3, Employee agrees that
during the term of this Agreement and for a period of one (1) year following
termination of employment for any reason, Employee will not directly or
indirectly, alone or as a partner, officer, director, shareholder or employee of
any other firm or entity, engage in any commercial activity in competition with
any part of the Company's business as conducted during the term of the Agreement
or as of the date of such termination of employment or with any part of the
Company's contemplated business with respect to which has Confidential
Information as governed by Article 5. This provision shall apply to the United
States of America and its territories and possessions for the duration of the
terms of this non-competition clause. For purposes of this clause (a),
"shareholder" shall not include beneficial ownership of less than five percent
(5%) of the combined voting power of all issued and outstanding voting
securities of a publicly held corporation whose stock is traded on a major stock
exchange or quoted on NASDAQ.
6.2 EARLY TERMINATION. Notwithstanding paragraph 6.1, if Employee's employment
terminates under circumstances which entitle Employee to receive damages for
breach of this Agreement pursuant to paragraph 4.7(e) and the company fails to
provide Employee with any compensation of benefits due Employee pursuant to
paragraph 4.7(e) and does not remedy such failure within ten (10) days after
receipt of notice of such failure from Employee, the restrictions set forth in
paragraph 6.1 shall cease to apply to for the remainder of the period to which
such restrictions would otherwise apply notwithstanding any subsequent remedy of
such failure by the Company.
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6.3 EMPLOYER'S OPTION TO REVISE. At its sole option, the Company may, by written
notice to Employee within thirty (30) days after the effective date of the
termination of Employee's employment, waive or limit the time and/or geographic
area in which is prohibited from engaging in competitive activity.
6.4 COVENANT NOT TO RECRUIT. Employee recognizes that the Company's workforce
constitutes an important and vital aspect of its business on a world-wide basis.
Employee agrees that for a period of (1) one year following the termination of
this agreement, for any reason whatsoever, Employee shall not solicit, or assist
anyone else in the solicitation of, any of the Company's then-current employees,
to terminate their employment with the Company and to become employed by any
business enterprise with which the Employee may then be associated, affiliated
or connected.
ARTICLE 7. GENERAL PROVISIONS
7.1 No Adequate Remedy. The parties declare that it is impossible to accurately
measure in money the damages, which will accrue to either party by reason of a
failure to perform any of the obligations under this Agreement. Therefore, if
either party shall institute any action or proceeding to enforce the provisions
hereof the party against whom such action or proceeding is brought hereby waives
the claim or defense that such party has an adequate remedy at law, and such
party shall not assert in any such action or proceeding the claim or defenses
that such party has an adequate remedy at law.
7.2 SUCCESSORS AND ASSIGNS.
(a) This Agreement shall be binding upon and inure to the benefit of any
Successor of the Company and each Subsidiary, and any such Successor shall
absolutely and unconditionally assume all of the Company's and any Subsidiary's
obligations hereunder. Upon Employee's written request, the Company will seek to
have any Successor, by agreement in form and substance satisfactory to Employee,
assent to the fulfillment by the Company of their obligations under this
Agreement. Failure to obtain such assent at least three (3) business days prior
to the time a person or entity becomes a Successor (or Where the Company does
not have at least three (3) business days' advance notice that a person or
entity may become a Successor, within one (1) business day after having notice
that such person or entity may become or has become a Successor) shall
constitute Good Reason for termination by Employee of employment pursuant to
paragraph 4.3. For purposes of this Agreement, "Successor" shall mean any
corporation, individual, group, association, partnership, firm, venture or other
entity or person that, subsequent to the date hereof, succeeds to the actual or
practical ability to control (either immediately or with the passage of time),
all or substantially all of the Company's business and/or assets, directly or
indirectly, by merger, consolidation, recapitalization, purchase, liquidation,
redemption, assignment, similar corporate transaction, operation of law or
otherwise.
(b) This Agreement and all rights of hereunder shall inure to the benefit of and
be enforceable by Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
Employee should die while any amounts would still be payable to Employee
hereunder if Employee had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
Employee's devisee, legatee, or other designee or, if there be no such designee,
to Employee's estate. Employee may not assign this Agreement, in whole or in any
part, without the prior written consent of the Company.
7.3 DISPUTES. Any dispute, controversy or claim for damages arising under or in
connection with this Agreement shall, in Company's sole discretion, be settled
exclusively by such judicial remedies as Company may seek to pursue or by
Arbitration in Denver, Colorado in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrators' award in any court having jurisdiction; provided, however, that
Employee shall be entitled to seek specific performance of Employee's right to
be paid until the Date of Termination during the pendency of any dispute or
controversy arising under or in connection with this Agreement. The Company and
the Employee shall each bear their own costs and expenses, including attorney's
fees, arising in connection with any arbitration proceeding pursuant to this
paragraph 7.3. The Company shall be entitled to seek an injunction or
restraining order in a court of competent jurisdiction to enforce the provisions
of Articles 5 and 6.
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7.4 NO OFFSETS. In no event shall any amount payable to Employee pursuant to
this Agreement be reduced for purposes of ffsetting, either directly or
indirectly, any indebtedness or liability of Employee to the Company.
7.5 WAIVER OF CLAIMS. Employee hereby releases, waives and discharges any and
all claims, whether legal, equitable or otherwise, against the Company, the
Parent Corporation or any director, officer, employee or agent thereof, which
Employee may now or at any time in the future have to any payments under any
agreement between Employee and the Company, in excess of the amounts determined
under the express provisions of such agreement.
7.6 NOTICES. All notices, requests and demands given to or made pursuant hereto
shall, except as otherwise specified herein, be in writing and be personally
delivered or mailed postage prepaid, registered or certified U.S. mail, to any
party as its address set forth on the last page of this Agreement. Either party
may, by notice hereunder, designate a changed address. Any notice hereunder
shall be deemed effectively given and received: (a) if personally delivered,
upon delivery; or (b) if mailed, on the registered date or the date stamped on
the certified mail receipt.
7.7 WITHHOLDING. To the extent required by any applicable law, including,
without limitation, any federal or state income tax or excise tax law or laws,
the Federal Insurance Contributions Act, the Federal Unemployment Tax Act or any
comparable federal, state or local laws, the Company retains the right to
withhold such portion of any amount or amounts payable to under this Agreement
as the Company (on the written advice of outside counsel) deems necessary.
7.8 CAPTIONS. The various headings or captions in this Agreement are for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
7.9 GOVERNING LAW. The validity, interpretation, construction, performance,
enforcement and remedies of or relating to this Agreement, and the rights and
obligations of the parties hereunder, shall be governed by the substantive laws
of the State of Colorado (without regard to the conflict of laws rules or
statutes of any jurisdiction).
7.10 CONSTRUCTION. Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
7.11 WAIVERS. No failure on the part of either party to exercise, and no delay
in exercising, any right or remedy hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right or remedy hereunder
preclude any other or further exercise thereof or the exercise of any other
right or remedy granted hereby or by any related document or by law.
7.12 MODIFICATIONS. This Agreement may not be modified or amended except by
written instrument sighed by the parties hereto.
7.13 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding between the parties hereto in reference to all the matters herein
agreed upon. This Agreement replaces in full all prior employment agreements or
understandings of the parties hereto, and any and all such prior agreements or
understandings are hereby rescinded by mutual agreement.
7.14 COUNTERPARTS. This Agreement may be executed in one (1) or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one (1) and the same instrument.
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7.15 SURVIVAL. The parties expressly acknowledge and agree that the provisions
of this Agreement which by their express or implied terms extend beyond the
termination of Employee's employment hereunder or beyond the termination of this
Agreement shall continue in full force and effect notwithstanding Employee's
termination of employment hereunder or the termination of this Agreement,
respectively.
ARTICLE 8. INVENTIONS
8.1 DISCLOSURE AND ASSIGNMENT OF INVENTIONS AND OTHER WORKS. Employee shall
promptly disclose to the Company in writing all inventions and works of
authorship which are conceived, made, discovered, written or created by alone or
jointly with another person, group or entity, whether during the normal hours of
my employment at the Company or on Employee's own time, during the term of this
Agreement and for one year after termination of this Agreement. Shall assign all
rights to all such inventions and works of authorship to the Company. shall give
the Company all the assistance it reasonably requires in order for Company to
perfect, protect, and use its rights to inventions and works of authorship.
Employee shall sign all such documents, take all such actions and supply all
such information that the Company considers necessary or desirable in order to
transfer or record the transfer of Employee's entire right, title and interest
in such inventions and works of authorship; and in order to enable the Company
to obtain exclusive patent, copyright, or other legal protection for inventions
and works of authorship. The company shall bear any reasonable expenses in this
regard.
8.2 EXEMPTION. An exemption shall exist for an invention for which no equipment,
supplies, facility or trade secret information of the employer was used and
which was developed entirely on the Employee's own time, and (1) which does not
relate (a) directly to the business of the employer or (b) to the employer's
actual or demonstrably anticipated research or development, or (2) which does
not result from any work performed by the employee for the employer.
8.3 ADDITIONAL EXCLUSIONS. The inventions and works of authorship set forth in
Schedule A to this Agreement which Employee owns or controls shall also be
excluded from operation of paragraph 8.1 of this Agreement, and represents that
such inventions and works of authorship were conceived, made, written, or
created by him prior to employment with the Company (although they may be useful
to the Company), its subsidiaries or affiliates. Other than the inventions and
works of authorship listed in Schedule A, does not own or control rights in any
inventions or works of authorship and shall not assert any such rights against
the Company. If no Schedule A is attached to this agreement, Employee makes no
claim of exclusion.
IN WITNESS WHEREOF, the parties hereto have caused this Employment Agreement to
be duly executed and delivered as of the day and year first above written.
EMPLOYEE COMPANY
/s/ Xxxxxxx X. Xxxxxx
--------------------------------- By: /s/
Xxxxxxx X. Xxxxxx -------------------------------
Title:
----------------------------
Address: 0000 X. Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
9
