RESTATED, AMENDED AND SUPPLEMENTAL EMPLOYMENT AGREEMENT
Exhibit 10.2
RESTATED,
AMENDED AND SUPPLEMENTAL EMPLOYMENT AGREEMENT
THIS RESTATED, AMENDED AND SUPPLEMENTAL
EMPLOYMENT AGREEMENT (the “2017 Agreement”) dated
the 28th day of August, by and between Novume Solutions, Inc.., a
Delaware corporation (the “Company”), and ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ (the “Executive”).
WITNESSETH:
WHEREAS, KeyStone
Solutions, Inc. (“KeyStone Solutions”) and Executive
entered into an employment agreement dated the 1st day of August,
2016, by and between the KeyStone Solutions, Inc. and the
Executive (the “Agreement”),
and
WHEREAS, the
Company, KeyStone Solutions, Inc., KeyStone Merger Sub, LLC,
Brekford Merger Sub, Inc., and Brekford Traffic Safety, Inc. are
merging into a single company (the “Merger”) to be
named Novume Solutions, Inc., and
WHEREAS, the
parties intend this Agreement to be binding as of the merger
effective date of the Merger (the “2017 Agreement Effective
Date”), to supersede (to the extent inconsistent) the
Agreement, and
WHEREAS
the parties have agreed to modify certain terms of the Agreement to
reflect certain changes to the terms of employment,
and
WHEREAS
the Company desires to employ the Executive under the terms of this
2017 Agreement, and the Executive wishes to accept the terms of
employment with the Company, as set forth in this 2017 Agreement;
the Agreement and the 2017 Agreement are collectively referred to
as the “Agreements”.
WITNESSETH:
In
consideration of the mutual promises and agreements set forth
herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
1. Employment and Effective
Date.
a) The effective date
of the Agreement was December 23, 2016 (the “Agreement Effective
Date”), the date on which KeyStone Solutions closed on
the sale of its Series A Preferred Stock resulting in gross
proceeds to KeyStone Solutions as approved by the Board of
Directors of KeyStone Solutions (the “KeyStone Board”). The Agreement
Effective Date is the date on which the Agreement first became
binding on KeyStone Solutions and the Executive.
b) The
Executive’s title shall be Executive Vice President,
Corporate Development as of the 2017 Agreement Effective Date. The
Executive’s position and assignments are subject to change.
The Executive hereby accepts such employment by the Company upon
the terms and conditions hereinafter set forth.
2. Compensation.
a) For performance of
all services rendered under this 2017 Agreement, the Company shall
pay the Executive a base salary at an annualized rate of $205,000
(the “Base
Salary”) in installments payable in accordance with
the Company’s customary payroll practices and the law. The
new Base Salary shall become effective for the first full Company
payroll cycle after the 2017 Agreement Effective Date. The
Executive shall receive a performance review on the anniversary of
the Agreement Effective Date, and the review will include a
determination of potential adjustment of the Executive’s Base
Salary, along with consideration for an annual discretionary
performance bonus. Discretionary interim period performance bonuses
may also be awarded to the Executive. Nothing herein should be
interpreted as a guarantee of any discretionary performance bonus
or salary increase.
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b) The Executive was
previously granted in the Agreement an option to purchase 90,000
shares of KeyStone Solutions’ common stock (the
“Option”). The Option was
subject to the terms of the KeyStone Solutions, Inc. 2016 Equity
Award Plan (the “Plan”) and applicable
stock option agreement provided by KeyStone Solutions and signed by
the Executive and approved by the KeyStone Board. Upon the Merger,
the Option will be converted into
174,595 options to purchase Company common stock, at a strike price
of $1.4176 per share pursuant to the 2017 Equity Award Plan of the
Company (the”2017 Equity Plan”). Pursuant to the
terms of the Plan, the Option shares began vesting in successive
equal monthly installments starting March 1, 2017 and continuing
over the 24-month period thereafter. The vesting of options to
purchase stock that vested under the Plan will be deemed converted
into vested options under the 2017 Equity Plan to the same extent
as they had already vested under the Plan, as of the 2017 Agreement
Effective Date. Such vested options shall remain in effect provided
that the Executive continues in service with the Company through
each vesting event as provided in the 2017 Equity Plan, as same may
be amended from time to time.
3. Duties. The Executive shall be
employed as an executive of the Company, and shall have such duties
as are assigned or delegated to him by the Company. The Executive
shall devote his full working time and attention to the business of
the Company and shall cooperate fully in the advancement of the
best interests of the Company. Subject to approval from the Company
in writing in advance, the Executive agrees not to engage in any
activities outside of the scope of the Executive’s employment
that would detract from, or interfere with, the fulfillment of his
responsibilities or duties under this Agreement.
4. Expenses. Subject to compliance
by the Executive with such policies regarding expenses and expense
reimbursement as may be adopted from time to time by the Company,
the Executive is authorized to incur reasonable expenses in the
performance of his duties hereunder in furtherance of the business
and affairs of the Company, and the Company will reimburse the
Executive for all such reasonable expenses, upon the presentation
by the Executive of an itemized account satisfactory to the Company
in substantiation of such expenses when claiming
reimbursement.
5. Employee Benefits; Vacations.
The Executive shall be eligible to participate in such life
insurance, medical and other employee benefit plans of the Company
that may be in effect from time to time, to the extent he is
eligible under the terms of those plans, on the same basis as other
similarly situated executive officers of the Company. The Company
may from time to time modify or eliminate any or all benefits
extended or provided in its sole discretion, subject to applicable
law. The Executive shall be entitled to three weeks of paid
vacation per year, which shall accrue and be used in accordance
with the policies of the Company in effect from time to time, as
determined by the Board of Directors of the Company. Subject to
such policies, any accrued but unused paid vacation shall be paid
out to Executive upon termination of employment unless the Company
terminates Executive’s employment for Cause (as defined in
Section 11) or the
Executive resigns his employment for other than Good Reason (as
defined in Section
11).
6. Taxation of Payments and
Benefits. The Company shall make deductions, withholdings
and tax reports with respect to payments and benefits under this
Agreement to the extent that it reasonably and in good faith
believes that it is required to make such deductions, withholdings
and tax reports. Payments under this Agreement shall be in amounts
net of any such deductions or withholdings. Nothing in this
Agreement shall be construed to require the Company to make any
payments to compensate the Executive for any adverse tax effect
associated with any payments or benefits or for any deduction or
withholding from any payment or benefit.
7. Termination. Either the
Executive or the Company may terminate the employment relationship
at any time, with or without Cause (as such term is defined in
Section 11) on
advance notice as provided herein or with immediate effect if the
termination is for Cause. The Executive agrees to give the Employer
at least fourteen (14) days prior written notice if he decides to
terminate his employment. Except in the case of a termination for
Cause, the Company agrees that it will provide identical notice.
The term of the Executive’s employment hereunder shall
continue until this Agreement is terminated as provided below, and
is hereinafter referred to as the “Employment Period.”
Upon termination of the Executive’s employment for any
reason, the Executive will be entitled to any earned but unpaid
Base Salary, commission, and bonus, as required by law, as well as
the following additional benefits:
a) Subject to
compliance with Section
7(d), in the event that the Executive’s employment is
terminated by the Company, for reasons other than Cause (as such
term is defined in Section
11) or in the event the Executive resigns his employment for
Good Reason (as defined in Section 11), the Executive will
be provided a severance package equal to a pre-determined number of
months of base salary and such percentage of health premiums for
the Executive’s family as would have been paid for by the
Company (pursuant to the applicable policy and plan documents)
during the corresponding time period (collectively, the
“Separation
Payment”) pursuant to the schedule below:
●
September
1-September 30, 2017, a period of twelve (12) months after
termination;
●
October 1-October
31, 2017, a period of eleven (11) months after
termination;
●
November 1-November
30, 2017, a period of ten (10) months after
termination;
●
December 1-December
31, 2017, a period of nine (9) months after
termination;
●
January 1-January
31, 2018, a period of eight (8) months after
termination;
●
February 1-February
28, 2018, a period of seven (7) months after termination;
or
●
March 1, 2018 or
after, a period of six (6) months after termination.
The
Separation Payment shall be paid in equal monthly installments and
shall begin within fifteen (15) business days of the effective date
of the release noted in Section 7(d). In the event that
the Executive’s employment is terminated by the Company for
reasons other than Cause or by the Executive for Good Reason, half
of all unvested Option shares shall vest immediately, pursuant to
the terms of the applicable stock option agreement and Plan
(together with Separation Payment, the “Separation
Consideration”).
b) In the event that
the Executive’s employment is terminated for Cause or the
Executive resigns without Good Reason, the Executive will not be
entitled to any Separation Consideration or any other severance
remuneration.
c) Notwithstanding any
termination of the Executive’s employment for any reason
(with or without Cause or Good Reason), the Executive will continue
to be bound by the provisions of the Proprietary Rights Agreement
(as defined below).
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d) All payments and
benefits provided pursuant to Section 7(a) shall be
conditioned upon the Executive’s execution and non-revocation
of a general release of liabilities favoring the Company. The
Executive’s refusal to execute a general release shall
constitute a waiver by the Executive of any and all benefits
referenced in Section
7(a). The Company will not be obligated to commence or
continue any such payments to the Executive under Section 7(a) in the event the
Executive materially breaches the terms of the 2017 Agreement or
the Confidentiality Agreement (as defined below) and fails to cure
such breach within thirty (30) days of written notice thereof
detailing such breach.
8. Confidentiality,
Non–Solicitation and Invention Assignment Agreement.
The Company considers the protection of its confidential
information and proprietary materials to be very important.
Therefore, as a condition of the Executive’s employment, the
Executive will be required to execute a confidentiality,
non-solicitation and invention assignment agreement substantially
in the form attached hereto as Exhibit A (the
“Proprietary Rights
Agreement”) on the date hereof.
9. Documents, Records, etc. All
documents, records, data, apparatus, equipment and other physical
property, whether or not pertaining to Confidential Information (as
defined in the Proprietary Rights Agreement), which are furnished
to the Executive by the Company or are produced by the Executive in
connection with the Executive’s employment will be and remain
the sole property of the Employer. The Executive will return to the
Company all such materials and property as and when requested by
the Employer. In any event, the Executive will return all such
materials and property immediately upon termination of the
Executive’s employment for any reason.
10. No Conflict. The Executive
hereby represents and warrants to the Company that (a) the 2017
Agreement constitutes the Executive’s legal and binding
obligation, enforceable against him in accordance with its terms,
(b) his execution and performance of the 2017 Agreement does not
and will not breach any other agreement, arrangements,
understanding, obligation of confidentiality or employment
relationship to which he is a party or by which he is bound, and
(c) while employed by the Company, he will not enter into any
agreement, either written or oral, in conflict with the 2017
Agreement or his obligations hereunder.
11. Definitions.
a) The term
“Cause”
shall mean (i) the Executive’s intentional, willful or
knowing failure or refusal to perform the Executive’s duties
(other than as a result of physical or mental illness, accident or
injury); (ii) dishonesty, willful or gross misconduct, or illegal
conduct by the Executive in connection with the Executive’s
employment with the Company; (iii) the Executive’s conviction
of, or plea of guilty or nolo contendere to, a charge of commission
of a felony (exclusive of any felony relating to negligent
operation of a motor vehicle); and (iv) a material breach by the
Executive of the Proprietary Rights Agreement; provided, however,
in the case of clauses (i) and (iv) above, the Company shall be
required to give the Executive fifteen (15) calendar days prior
written notice of its intention to terminate the Executive for
Cause and the Executive shall have the opportunity during such
fifteen (15) day period to cure such event if such event is capable
of being cured; provided, further, that in the event that the
Executive terminates his employment with the Company during such
fifteen (15) day period for any reason, such termination shall be
considered a termination for Cause.
b) The term
“Good
Reason” shall mean (i) any material reduction of the
Executive’s Base Salary, unless similar reductions are
imposed on all similarly situated executive officers of the Company
(ii) any material breach by the Company of its obligations under
the 2017 Agreement, and (iii) a change without the
Executive’s consent in the principal location of the
Company’s office to an office that is more than 25 miles from
the current location and the Executive’s primary residence
(if such move increases the Executive’s commute); provided
that in any case the Executive provides the Company with written
notice of the Executive’s intention to terminate the
Executive’s employment for Good Reason within thirty (30)
days after the occurrence of the event that the Executive believes
would constitute Good Reason, gives the Company an opportunity to
cure for thirty (30) days following receipt of such notice from the
Executive, if the event is capable of being cured or, if not
capable of being cured, to have the Company’s representatives
meet with the Executive and the Executive’s counsel to be
heard regarding whether Good Reason exists for the Executive to
terminate the Executive’s employment with the Company and the
Executive terminates employment within thirty days after the end of
the cure period if the Good Reason condition is not
cured.
c) The term
“person” shall mean any
individual, corporation, firm, association, partnership, other
legal entity or other form of business organization.
12. Section
409A.
a) Anything in the
2017 Agreement to the contrary notwithstanding, if at the time of
the Executive’s separation from service within the meaning of
Section 409A of the Code, the Company determines that the Executive
is a “specified employee” within the meaning of Section
409A(a)(2)(B)(i) of the Code, then to the extent any payment or
benefit that the Executive becomes entitled to under the 2017
Agreement on account of the Executive’s separation from
service would be considered deferred compensation subject to the 20
percent additional tax imposed pursuant to Section 409A(a) of the
Code as a result of the application of Section 409A(a)(2)(B)(i) of
the Code, such payment shall not be payable and such benefit shall
not be provided until the date that is the earlier of (A) six
months and one day after the Executive’s separation from
service, or (B) the Executive’s death. If any such delayed
cash payment is otherwise payable on an installment basis, the
first payment shall include a catch-up payment covering amounts
that would otherwise have been paid during the six-month period but
for the application of this provision, and the balance of the
installments shall be payable in accordance with their original
schedule.
b) The parties intend
that the 2017 Agreement will be administered in accordance with
Section 409A of the Code. To the extent that any provision of this
Agreement is ambiguous as to its compliance with Section 409A of
the Code, the provision shall be read in such a manner so that all
payments hereunder comply with Section 409A of the Code. The
parties agree that the 2017 Agreement may be amended, as reasonably
requested by either party, and as may be necessary to fully comply
with Section 409A of the Code and all related rules and regulations
in order to preserve the payments and benefits provided hereunder
without additional cost to either party.
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c) The determination
of whether and when a separation from service has occurred shall be
made by the Company in accordance with the presumptions set forth
in Treasury Regulation Section 1.409A-1(h).
d) The Company makes
no representation or warranty and shall have no liability to the
Executive or any other person if any provisions of the 2017
Agreement are determined to constitute deferred compensation
subject to Section 409A of the Code but do not satisfy an exemption
from, or the conditions of, such Section.
13. Successors and Assigns; Entire
Agreement; No Assignment. the 2017 Agreement shall bind and
inure to the benefit of the parties hereto and their respective
successors or heirs, distributes and personal representatives. The
2017 Agreement and the Proprietary Rights Agreement contain the
entire agreement between the parties with respect to the subject
matter hereof and supersede other prior and contemporaneous
arrangements or understandings with respect thereto. The Executive
may not assign the 2017 Agreement without the prior written consent
of the Company.
14. Notices. All notices and other
communications required or permitted hereunder or necessary or
convenient in connection herewith shall be in writing and shall be
deemed to have been given when hand-delivered, mailed by registered
or certified mail (three days after deposited), faxed (with
confirmation received) or sent by a nationally recognized courier
service, as follows (provided that notice of change of address
shall be deemed given only when received):
If to the
Company:
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Attn:
Chairman
Attn:
CEO
If to the
Executive:
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇ ▇▇.
▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
or to
such other names and addresses as the Company or the Executive, as
the case may be, shall designate by notice to each other person
entitled to receive notices in the manner specified in this
Section 14.
15. Changes; No Waiver; Remedies
Cumulative. The terms and provisions of the Agreements may
not be modified or amended, or any of the provisions hereof waived,
temporarily or permanently, without the prior written consent of
each of the parties hereto. Either party’s waiver or failure
to enforce the terms of the Agreements or any similar agreement in
one instance shall not constitute a waiver of its or his rights
hereunder with respect to other violations of this or any other
agreement. No remedy conferred upon the Company or the Executive by
the 2017 Agreement is intended to be exclusive of any other remedy,
and each and every such remedy shall be cumulative and shall be in
addition to any other remedy given hereunder or now or hereafter
existing at law or in equity.
16. Governing Law. The Agreements
and (unless otherwise provided) all amendments hereof and waivers
and consents hereunder shall be governed by the law of the
Commonwealth of Virginia, without regard to the conflicts of law
principles.
17. Severability. The Executive and
the Company agree that should any provision of the 2017 Agreement
be judicially determined invalid or unenforceable, that portion of
the 2017 Agreement may be modified to comply with the law. The
Executive and the Company further agree that the invalidity or
unenforceability of any provision of the 2017 Agreement will not
affect the validity or enforceability of its remaining
provisions.
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18. Execution of Other Agreements.
The Confidentiality Agreement is hereby incorporated into the 2017
Agreement in its entirety and is made an integral part of the 2017
Agreement .
19. Headings; Counterparts. All
section headings are for convenience only. The 2017 Amendment may
be executed in several counterparts, each of which is an original,
and may be transmitted electronically, with such electronic copy
serving as an original.
20. Termination of the 2017
Agreement. Unless otherwise terminated pursuant to
Section 7, this
2017 Agreement expires three years from the Agreement Effective
Date, but may be extended in writing by mutual
consent.
IN
WITNESS WHEREOF, the parties have executed this Employment
Agreement as of the date first above written.
SEE
SEPARATE SIGNHATURE PAGE
5
By: /s/ ▇▇▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇
EXECUTIVE:
/s/ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
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EXHIBIT A
PROPRIETARY RIGHTS AGREEMENT
THIS PROPRIETARY RIGHTS
AGREEMENT (the
“Agreement’) dated as of the same date as the Restated,
Amended and Supplemental Employment Agreement (the
“Employment Agreement”) between the parties of even
date herewith between Novume Solutions, Inc. (the
“Company”), a Delaware corporation, and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
(“You”, “Your” or the
“Executive”).
WITNESSETH:
WHEREAS, the parties desire to confirm
their understanding with
respect to (i) your agreement not to compete with the Company or
any present or future parent, subsidiary or affiliate thereof
(collectively, the “Company Group”), (ii) your
agreement to protect and preserve information and property which is
confidential and proprietary to the
Company and/or the Company Group and (iii) your agreement
with respect to the ownership of inventions, ideas, copyrights and
patents which may be used in the business of the Company
and/or the Company Group,
and
WHEREAS, your execution and return of this
Agreement is a condition of your employment with the Company.
NOW
THEREFORE, in
consideration of the mutual promises and covenants contained in
this Agreement and the Employment
Agreement between the parties of even date herewith, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby mutually acknowledged, the parties hereto hereby agree as
follows:
1.
Prohibited Competition, Solicitation
and Disparagement.
(a)
Certain Acknowledgements and
Agreements.
(i)
We have discussed,
and you recognize and acknowledge the competitive and proprietary
aspects of the business of the Company and the Company Group.
(ii)
You acknowledge that a business will be deemed a “Competitive
Business” if it competes directly with any of the services or
manufactures or sells any directly competitive product provided or offered by, or which could substitute for services or
products of, the Company or the Company Group during the year preceding the termination of your
employment with the Company or the Company Group or if it performs
any other services and/or engages in the marketing, production,
manufacture, distribution or sale of any product or service
substantially similar to
or which could substitute for
services or products performed, produced, marketed, manufactured,
distributed, sold, under development or planned by the Company
or the Company Group during
the year preceding the termination
of your employment with the Company or the Company Group.
(iii)
You further acknowledge that, during the course of your
employment with the Company
or Company Group, the Company
and/or the Company Group
will furnish, disclose or make
available to you valuable Confidential Information (as defined
below) related to the Company’s
and the Company Group’s business and that the Company
and the Company Group
will provide you with unique
and specialized training, experiences and opportunities.
You also acknowledge that such
Confidential Information and such training, experiences and
opportunities have been developed and will be developed by the
Company and the Company Group through the expenditure by the
Company and/or the Company Group of substantial time, effort and
money and that the Company believes that all such Confidential
Information and training, experiences and opportunities could be
used by you to compete with the Company and/or the Company
Group. Further, in the course of your employment with the
Company and/or
Company Group, you will
be introduced to and collaborate with and maintain substantial
relationships with customers, prospective customers, other business
partners, and prospective business partners of the Company and/or Company Group.
(iv)
For purposes of this Agreement, “Confidential
Information,” means confidential
and proprietary information of the Company and/or the Company Group, whether in
written, oral, electronic or other form, including but not limited
to, information and facts concerning business plans, marketing
plans, strategies, forecasts, customers, future customers,
suppliers, licensors, licensees, partners, investors, affiliates or others, training methods and
materials, financial information, pricing, sales prospects, client
and partner lists, inventions, tests, test results, product
assessments, improvements or any other scientific, technical or
trade secrets of the Company and/or
the Company Group or of any third party provided to you or the
Company and/or the Company Group, provided that Confidential
Information will not include information that is in the public
domain or that is generally known by
competitors of the Company or
the Company Group other
than through any fault, act or
omission by you. The phrase, “trade secrets,” as used
in this Agreement, will be given its broadest possible
interpretation under the law of the Commonwealth of Virginia and
will include, without limitation, anything tangible or intangible
or electronically kept or stored, which constitutes, represents,
evidences or records any secret scientific, technical,
merchandising, production or management information, or any design,
process, procedure, formula, invention, improvement or other
confidential or proprietary information or
documents.
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(v)
You acknowledge that the Company has
stated to you that the Company’s and the Company
Group’s business reaches worldwide and that the Company and
the Company Group does not operate as a traditional “brick
and mortar” business with operations in a limited geographic
area.
(vi)
For purposes of this agreement, “termination” is
defined to include your resignation or termination by the Company
and/or the Company Group under
any circumstances.
(b) Non-Competition;
Non-Solicitation; Non-Disparagement. During the period in
which you are employed by the Company and/or the Company Group and for a period of
one (1) year following the termination of your employment with the Company and/or the Company Group for
any reason or for no reason, you will not, without the prior
written consent of the Company and/or
the Company Group, as applicable:
(i) Subject
only to the terms of your Employment Agreement with the Company of
even date herewith, for yourself or on behalf of any other
person or entity, directly or
indirectly, either as principal, partner, stockholder,
officer, director, member, employee, consultant, agent,
representative or in any other capacity, own, manage,
operate, control or consult with or for, or be employed
by, or otherwise associate in any manner with,
engage in, or have an ownership
or other financial interest in,
any Competitive Business to provide the same type of services you
provided to the Company or the Company
Group (each, a “Restricted Activity”) anywhere
in the United States where the Company or the Company Group’s business has
reached at any time during your employment with the Company or the Company Group (the “Restricted
Territory”), except that nothing contained herein will
preclude you from purchasing or owning securities of any such
business if such securities are publicly traded, and provided that
your holdings do not exceed one percent (1%) of the issued and
outstanding securities of any class of securities of such business;
or
(ii)
Either individually or on behalf of or through any third party,
directly or indirectly,
solicit, divert or appropriate or attempt to solicit, divert or
appropriate any customer or other business partner of the Company
or the Company Group (or any person or
entity which was a customer or business partner, or a prospective
customer or business partner with respect to which the Company
and/or the Company Group has developed or made a sales
presentation), with whom you had material contact
during the period in which you were
employed with the
Company and/or the Company
Group, for the purpose of competing with the Company
or the Company Group or
reducing the Company’s or the
Company Group’s relationship with any customers or
other business partners of the Company
or the Company Group; or
(iii)
Either individually or on behalf of or through any third party,
directly or indirectly, employ,
hire, cause to be employed or engaged, or solicit the employment or
the engagement as a consultant of any employee of or consultant to
the Company or the Company
Group while any such person is employed by or providing consulting services
to the Company or the
Company Group or within six (6) months after any such person
ceases to be an employee or
consultant with the Company Group; or
(iv) Either
individually or on behalf of or through any third party, directly
or indirectly, interfere with or attempt to interfere with, the
relations between the Company and/or the Company Group and any
vendor or supplier to the Company or the Company Group;
or
(v) During
the course of your employment
with the Company and/or the Company
Group and at all times thereafter (notwithstanding the one year
period noted above), you will not make any statement that is
professionally or personally disparaging or defamatory about the Company
the Company Group, any of its
officers, directors, shareholders or employees including, but not
limited to, any statement that disparages any person, product,
service, financing, financial condition, capability or other aspect
of the Company’s or the
Company Group’s business or any of its officers,
directors, shareholders or employees. You further agree that during the course of your
employment with the Company and/or the Company Group you will not
engage in any conduct that is intended to or has the result of
inflicting harm upon the professional or personal reputation of the
Company or the Company Group or any of its officers, directors,
shareholders or employees.
(vi)
The Company Group agrees and covenants
that it shall take all
corporate action within its power to cause its officers and directors to refrain from
making any defamatory or disparaging remarks, comments, or
statements concerning you during the term of your employment with the
Company and/or the Company
Group and at all times
thereafter.
(vii)
This Section 1(b) does not,
in any way, restrict or impede the parties from exercising
protected rights to the extent that such rights cannot be waived by
agreement or from complying with any applicable law or regulation
or a valid order of a court of competent jurisdiction or an
authorized government agency, provided that such compliance does
not exceed that required by the law, regulation, or
order.
(c)
Reasonableness
of Restrictions. You further recognize and acknowledge that (i) the
types of employment which are prohibited by this Section 1 are
narrow and reasonable in relation to the skills which represent
your principal salable assets both to the Company and the Company
Group and to other prospective employers, and (ii) the specific but
broad geographical scope of the provisions of this Section 1 is
reasonable, legitimate and fair to you in light of the nature of
the company’s and the Company Group’s technology and
services, the Company’s and the Company Group’s need to
market and sell its services and products in an appropriate manner
and in light of the limited restrictions on the type of activity
prohibited compared to the activities for which you are qualified
to earn a livelihood. Therefore, you agree that each of the
provisions of this Section 1 is fair and reasonable in scope and
duration, to adequately protect the Company’s and the Company
Group’s legitimate interests, and constitutes a key component
of, and consideration for, this Section 1.
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(d)
Survival of Acknowledgements and
Agreements. Your acknowledgements and agreements set forth
in this Section 1 will survive the termination of your employment with the Company for any reason
or for no reason.
2.
Protected Information. You will
at all times, both during the period while you are employed by the Company and after the
termination of your employment
with the Company and/or the Company
Group for any reason or for no reason, maintain in
confidence and will not, without the prior written consent of the
Company and/or the Company Group (as
applicable), use, except in the course of performance of
your duties for the Company and/or the
Company Group or by court order or other applicable legal process, disclose
or give to others any Confidential Information. In the
event you are questioned about, or requested to provide,
Confidential Information by anyone not employed by or otherwise
affiliated with the Company or the Company Group or by an employee
of or a consultant to the Company or the Company Group (or any
other person) not authorized to receive Confidential Information,
or concerning any fact or circumstance relating thereto, you will
promptly notify the Company and the Company Group. Upon the
termination of your employment
with the Company and the
Company Group for any reason or for no reason, or if the
Company or the Company Group
otherwise requests, (i) you will return to the Company and the Company Group all tangible
Confidential Information and copies thereof (regardless how such
Confidential Information or copies are maintained) and (ii) you
will deliver to the Company and the
Company Group any property of the Company or the Company Group which may
be in your possession, including products, materials, memoranda,
notes, records, reports, or other documents, photocopies or
electronic versions of the same. The terms of this Section 2 are in
addition to, and not in lieu of, any statutory or other contractual
or legal obligation that you may have relating to the protection of
the Company and the Company
Group’s Confidential Information. The terms of this Section 2
will survive indefinitely any termination of your employment with the Company Group for any
reason or for no reason.
3.
Ownership of Ideas, Copyrights and
Patents.
(a) Property
of the Company and/or the Company
Group. All ideas, discoveries, creations, manuscripts and
properties, innovations, improvements, know-how, inventions,
designs, developments, apparatus, techniques, methods, and formulae
(collectively the “Inventions”) which may be used in
the business of the Company or the
Company Group, whether patentable, copyrightable or not,
which you conceive, reduce to
practice or develop (whether alone or in conjunction with
another or others) during the period while you are employed with the Company and/or the Company Group and which in any way
relate to the Company’s or the Company Group’s
business will be
the sole and exclusive property of the Company and/or Company Group (as applicable).
You agree that you will
not publish any of the
Inventions without the prior written consent of the Company and the Company Group. Without
limiting the foregoing, you also acknowledge that all original
works of authorship which are made by you (solely or jointly with
others) during and within the
scope of your employment or during
your employment which relate to the business of the Company or the
Company Group or a Company or Company Group affiliate and
which are protectable by copyright are “works made for
hire” pursuant to the United States Copyright Act (17 U.S.C.
Section 101). You hereby assign to the
Company Group or its designee all of your right, title and interest
in and to all of the foregoing. You further represent that, to the
best of your knowledge and belief, none of the Inventions will
violate or infringe upon any right, patent, copyright, trademark or
right of privacy, or constitute libel or slander against or violate
any other rights of any person, firm or corporation, and that you
will use your best efforts to prevent any such
violation.
(b) Cooperation.
At any time during or after the period during which you are
employed by the Company Group,
you will fully cooperate with the Company Group and its attorneys
and agents, as is reasonably
necessary, in the preparation and filing of all papers and
other documents as may be required to perfect the Company
Group’s rights in and to any of such Inventions, including,
but not limited to, joining in any proceeding to obtain letters
patent, copyrights, trademarks or other legal rights with respect
to any such Inventions in the United States and in any and all
other countries, provided that the Company Group will bear the
expense of such proceedings, and that any patent or other legal
right so issued to you personally will be assigned by you to the
Company Group or its designee without charge by you.
(c) Licensing
and Use of Innovations. With respect to any Inventions, and work of
any similar nature (from any source), whenever created, which you
have not prepared or originated in the performance of your
employment, but which you provide to the Company Group or
incorporate in any Company Group product or system, to the extent
that the Executive has the right, power, authority or discretion to
do so, you hereby grant to the Company Group a royalty-free, fully
paid-up, non-exclusive, perpetual and irrevocable license
throughout the world to use, modify, create derivative works from,
disclose, publish, translate, reproduce, deliver, perform, dispose
of, and to authorize others so to do, all such Inventions. You will
not include in any Inventions you deliver to the Company Group or
use on its behalf, without the prior written approval of the
Company Group, any material which is or will be patented,
copyrighted or trademarked by you or others unless you provide the
Company Group with the written permission of the holder of any
patent, copyright or trademark owner for the Company Group to use
such material in a manner consistent with then-current Company
Group policy. Subject to the license referred to hereinabove,
nothing in this Agreement shall
be construed as an assignment, transfer, waiver, or relinquishment
by you of any rights, title, or interests (including, without
limitation, patent, copyright and trademark interests) in
Inventions or works of authorship conceived or developed by you
either before your employment with the Company or after your
employment with the Company.
4.
Disclosure to Future Employers.
During your employment with the company and for the period of one
(1) year immediately thereafter, you will provide, and the Company Group,
in its discretion, may provide, a copy of this Agreement to any
business or enterprise which you may directly or indirectly own,
manage, operate, finance, join, control or in which you may
participate in the ownership, management, operation, financing, or
control, or with which you may be connected as an officer,
director, employee, partner, principal, agent, representative,
consultant or otherwise.
5.
No Conflicting Agreements. You
hereby represent and warrant that you have no commitments
or obligations inconsistent with this Agreement and that you will indemnify and hold the
Company Group harmless against loss, damage, liability or expense
arising from any claim based upon any purported inconsistent
commitment or obligation. In addition:
(a) You represent that you have no agreement or
other legal obligation with any prior employer or any other person
or entity that restricts
your ability to perform any function for the Company.
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(b) You have been
advised by the Company that at no time should you divulge to or use
for the benefit of the Company any trade secret or confidential or
proprietary information of any previous employer. You have not
divulged or used any such information for the benefit of the
Company.
(c)
You
have not and will not misappropriate any Invention that you played
any part in creating while working for any former
employer.
(d) You recognize
that the Company and the Company Group
have received, and in the future will receive, confidential or proprietary
information from third parties subject to a duty on the Company
and/or the Company Group to
maintain the confidentiality of such information and to use it only
for certain limited purposes. You agree to hold all such
confidential and proprietary information in the strictest
confidence and not to disclose it to any person or entity or to use
it except as necessary
in the course of performance of your
duties for the Company and/or
the Company Group consistent with the Company’s
and/or the Company
Group’s agreement with such third parties or pursuant to a court order or other applicable
legal process (in which
instance you will provide the Company and the Company Group with
notice of such court order or other applicable legal process within
four [4] business day of your receipt of same).
(e) You
acknowledge that the Company has based important business decisions
on these representations, and affirm that all of the statements
included herein are true.
6.
General.
(a) Agreement
Enforceable if You Are Transferred. You acknowledge and agree that
if consistent with the Employment Agreement of even date herewith
or pursuant to your agreement you should transfer between or among
any affiliates of the Company, wherever situated, or be promoted or
reassigned to functions other than your present functions, all
terms of this Agreement shall continue to apply with full
force.
(b) All
notices and other communications required or permitted hereunder or
necessary or convenient in connection herewith shall be in writing
and shall be deemed to have been given when hand-delivered, mailed
by registered or certified mail (three days after deposited), or
sent by a nationally recognized courier service (i.e. UPS, FedEx),
to the following address (provided that notice of change of address
shall be deemed given only when received):
If to the
Company:
Novume Solutions,
Inc.
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn
: ▇▇▇▇▇▇ ▇▇▇▇▇▇, CEO
▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
If to Executive:
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇ ▇▇.
▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
▇▇▇▇@▇▇▇▇▇▇.▇▇▇
or to such other names and addresses as the
Company, the Company
Group or the Executive, as the
case may be, shall designate by notice to each other person
entitled to receive notices in the manner specified in this Section
6(b). A copy of any such notice or communication
under this Section 6(b) shall be
transmitted via electronic mail to the party’s corresponding
email address on the same day as the notice’s or
communication’s hand-delivery, mailing, or transmission by
courier service.
(c) Entire
Agreement. This Agreement and the Employment Agreement contain the
entire agreement between the parties with respect to the subject
matter hereof and supersede other prior and contemporaneous
arrangements, agreements,
promises, warranties and understandings with respect
thereto. No statement,
representation, warranty, covenant or agreement of any kind not
expressly set forth in this Agreement or the Employment Agreement
will affect, or be used to interpret, change or restrict, the
express terms and provisions of this Agreement.
(d) Modifications,
Amendments and Waivers. The
terms and provisions of this Agreement may not be modified, amended, altered, revised, changed, waived,
terminated, cancelled and/or rescinded, in whole or in part, except
by a writing executed by
the parties hereto or except as
otherwise specifically and expressly set forth herein. No such
waiver, nor any departure from the terms hereof, will be
deemed to be or will constitute a waiver or consent with respect to
any other terms or provisions of this Agreement, whether or not
similar. Each such waiver or consent will be effective only in the
specific instance and for the purpose for which it was given, and
will not constitute a continuing waiver or consent.
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(e) Assignment.
The Company may assign its rights and obligations hereunder to any
person or entity that succeeds to all or substantially all of the
Company or the Company
Group’s business. You may not assign your rights and
obligations under this Agreement without the prior written consent
of the Company and the Company
Group and any such attempted assignment by you without the prior
written consent of the Company and the
Company Group will be void.
(f)
Benefit. All statements, representations, warranties, covenants and
agreements in this Agreement will be binding on the parties hereto
and will inure to the benefit of the respective successors and
permitted assigns of each party hereto. Nothing in this Agreement
will be construed to create any rights or obligations except
between the Company and the Company Group and you, and no person or
entity other than the Company Group will be regarded as a
third-party beneficiary of this Agreement.
(g)
Governing Law. This Agreement shall be deemed to have been made in
the Commonwealth of Virginia, and the validity, interpretation and
performance of this Agreement shall be governed by, and construed
in accordance with, the internal law of the Commonwealth of
Virginia, without giving effect to conflict of law principles, and
specifically excluding any conflict or choice of law rule or
principle that might otherwise refer construction or interpretation
of this Agreement to the substantive law of another
jurisdiction.
(h) Jurisdiction,
Venue and Service of Process. Any legal action or proceeding with
respect to this Agreement must be brought in a court of competent
jurisdiction in the Commonwealth of Virginia and shall be subject
to the jurisdiction of such courts only. By execution and delivery
of this Agreement, each of the parties hereto accepts for itself
and in respect of its property, generally and unconditionally, the
exclusive jurisdiction of the aforesaid courts.
(i) Waiver
of Jury Trial. Any action, demand, claim or counterclaim arising
under or relating to this Agreement will be resolved by a judge
alone and each of the Company Group and you waive any right to a
jury trial thereof.
(j) Severability.
The parties intend this Agreement to be enforced as written.
However, (i) if any provision, or part thereof, is held to be
unenforceable because of the duration of such provision or the
geographic area covered thereby, the court making such
determination will have the power to reduce the duration and/or
geographic area of such provision, and/or to delete specific words
and phrases (“blue-pencilling”), and in its reduced or
blue-pencilled form such provision will then be enforceable and
will be enforced to the fullest extent permitted by law and (ii) if
any portion or provision of this Agreement is to any extent
declared illegal,
void, invalid, or otherwise unenforceable by a court
of competent jurisdiction
which shall determine that any such
illegal, void, invalid or unenforceable provisions cannot be cured
by blue-pencilling, then the remaining parts, terms or provisions shall
not be affected thereby and shall be
enforceable between the parties to the fullest extent of the
law, and said
illegal, void,
invalid or otherwise unenforceable part, term or provision shall be deemed not to be a part of this
Agreement.
(k) Headings
and Captions. The headings and captions of the various subdivisions
of this Agreement are for convenience of reference only and will in
no way modify or affect the meaning or construction of any of the
terms or provisions hereof.
(l) Injunctive
Relief. You hereby expressly acknowledge that the restrictions and
covenants set forth in Section 1, 2, and 3 are material and
critically important provisions of this Agreement and that any
breach or threatened breach of any of the terms and/or conditions
set forth in Section 1, 2 or 3 of this Agreement may result in
substantial, continuing and irreparable injury to the Company Group
and/or damages that may be difficult to quantify. Therefore, in
addition to any other remedy that may be available to the Company
Group, it may be appropriate that the Company Group receive a temporary restraining order
and/or preliminary injunction, by a court of appropriate
jurisdiction in the event of any breach or threatened breach of the
terms of Section 1, 2 or 3 of this Agreement, without the necessity
of proving actual damages or
irreparable harm, and without the necessity of posting any bond or
undertaking for the temporary restraining order or preliminary
injunction.
(m)
No Waiver of Rights, Powers and Remedies. No failure or delay by a
party hereto in exercising any right, power or remedy under this
Agreement, and no course of dealing between the parties hereto or
in any trade or industry, will operate as a waiver of any such
right, power or remedy of the party. No single or partial exercise
of any right, power or remedy under this Agreement by a party
hereto, nor any abandonment or discontinuance of steps to enforce
any such right, power or remedy, will preclude such party from any
other or further exercise thereof or the exercise of any other
right, power or remedy hereunder. The election of any remedy by a
party hereto will not constitute a waiver of the right of such
party to pursue other available remedies. No notice to or demand on
a party not expressly required under this Agreement will entitle
the party receiving such notice or demand to any other or further
notice or demand in similar or other circumstances or constitute a
waiver of the rights of the party giving such notice or demand to
any other or further action in any circumstances without such
notice or demand.
(n) Counterparts.
This Agreement may be executed in two or more counterparts, and by
different parties hereto on separate counterparts, each of which
will be deemed an original, but all of which together will
constitute one and the same instrument.
(o)
Opportunity to Review. You hereby acknowledge that you have had
adequate opportunity to review these terms and conditions and to
reflect upon and consider the terms and conditions of this
Agreement, and that you have had the opportunity to consult with
counsel of your own choosing regarding such terms. You further
acknowledge that you fully understand the terms of this Agreement
and have voluntarily executed this Agreement.
(p) Effective
Date. The Effective Date of this Agreement shall be the same
Effective Date as the Employment Agreement. The Effective Date is
the date which this Agreement first becomes binding on the Company
and the Executive.
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IN WITNESS
WHEREOF, the parties have
executed this Proprietary Rights Agreement as of the
date of the Employment Agreement of
even date herewith.
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