EMPLOYMENT AGREEMENT
Exhibit 10.2
This
EMPLOYMENT AGREEMENT (this “Agreement”) is dated as
of the 14th day of November,
2018 (the “Effective
Date”), by and between Novume Solutions, Inc. (the
“Company”), a Delaware
corporation, and Xxxxxxx Xxxx (the “Executive”).
WITNESSETH:
The
Company desires to employ the Executive, and the Executive wishes
to accept such employment with the Company, upon the terms and
conditions set forth in this Agreement.
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.
a) The
Executive’s initial title shall be Chief Science Officer. The
Executive’s duties are to be determined by the Chief
Executive Officer of the Company (the “Chief Executive
Officer”); provided that such duties are reasonably
consistent with the role of Chief Science Officer. The Executive
shall perform such duties and report as directed by the Chief
Executive Officer. 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.
b)
The Executive’s employment
hereunder shall be effective as of the Closing Date of that certain
Asset Purchase Agreement by and among the Company, OpenALPR
Technology, Inc. and Executive, dated November 14, 2018 (as defined
therein), and shall continue until the 3rd
anniversary thereof unless terminated
earlier pursuant to Section 8 of this Agreement; provided that, on
such 3rd
anniversary of the Closing Date and
each annual anniversary thereafter (such date and each annual
anniversary thereof, a “Renewal
Date”), the Agreement
shall be deemed to be automatically extended, upon the same terms
and conditions, for successive periods of one year, unless either
party provides written notice of its intention not to extend the
term of the Agreement at least ninety (90) days prior to the
applicable Renewal Date. The period during which the Executive is
employed by the Company hereunder is hereinafter referred to as the
“Employment Term.”
2.
Compensation.
In
salary compensation for the Executive’s employment, the
Company shall pay the Executive a base salary at an annualized rate
of $165,000 (the “Base Salary”) in
installments payable in accordance with the Company’s
customary payroll practices and the law. The Executive shall
receive a performance review on an annual basis, which will include
a determination of potential increases of the Executive’s
Base Salary, along with consideration for a discretionary
performance bonus. Nothing herein should be interpreted as a
guarantee of any discretionary performance bonus or salary
increase.
3.
Duties. The
Executive shall have such duties as are assigned or delegated to
him consistent with his title as Chief Science Officer. The
Executive shall devote substantially all his 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,
during the term of this Agreement or any extensions or renewals
thereof 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 medical, retirement and other employee benefit plans of the
Company that may be in effect or modified 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
or, at the option of the Executive, he may instead elect to receive
monthly payments equal to the amount of the monthly medical
insurance premiums which the Company would otherwise pay on his
behalf in lieu of Executive receiving medical insurance.
Notwithstanding the foregoing, in the event that the Executive
chooses to receive monthly payments in lieu of receiving medical
insurance and any federal, state or local law, now or in the
future, (a) prohibits any employee from failing to accept medical
insurance offered by his employer, the Company shall not be
required to provide the Executive with monthly payments equal to
the amount of the medical insurance premiums which the Company
would otherwise pay on his behalf and the Executive shall either
accept the medical insurance provided by the Company or reject such
insurance without any reimbursement or payment in lieu thereof
and/or (b) financially penalizes the Company for not providing
medical insurance to an employee but permits the Company to pay to
the employee sums in lieu of providing medical insurance, the
Company shall deduct from the monthly payments to be made to the
Executive the amount of such financial penalty until such penalty
is reimbursed in full to the Company. The Executive shall be
entitled to vacation in accordance with the policies of the Company
in effect from time to time, as determined by the
Board.
6.
Indemnification.
The Executive shall be indemnified and held harmless consistent
with the provisions of the by-laws of the Company in effect at that
time but in no event shall the Executive receive diminished rights
or rights less than those rights provided by applicable law. The
Company shall maintain reasonable insurance on behalf of Executive
against any liability asserted against him and incurred by him in
his capacity as an officer of the Company.
7.
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.
8.
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 12) 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 six (6) months’ 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. Upon termination of the Executive’s
employment for any reason, the Executive will be entitled to any
earned but unpaid Base Salary, any bonus approved prior to
termination, reimbursement for
unreimbursed expenses properly incurred by the Executive prior to
the termination, his stock and vested stock options, and if
terminated for reasons other than Cause or if he resigns for
reasons other than Good Reason such employee benefits (including
equity compensation), if any, to which the Executive may be
entitled under the Company’s employee benefit plan(s) as of
the termination. Additionally:
a)
Subject to compliance with Section 8(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 12),
which includes but is not limited to the de facto termination of the Executive
resulting from the Company electing to allow or cause this
Agreement to expire under Section 1(b), or in the event
the Executive resigns his employment for Good Reason (as defined in
Section 12),
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 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:
●
If terminated
during the first 3 years of employment, the Executive will be paid
the balance of the employment term.
●
If terminated after
the first 3 years of employment and during the automatic extension
of the Agreement for successive one year terms pursuant to Section
1(b), the Executive will be paid the balance of the employment term
within such one year period.
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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 8(d).
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 Payment or any other
severance remuneration except as otherwise specifically set forth
herein.
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).
d) All
payments and benefits provided pursuant to Section 8(a) shall be
conditioned upon the Executive’s execution and non-revocation
of a general release of liabilities in favor of the Company which
is prepared and provided by the Company; provided that such release
is subject to Executive’s consent, which shall not be
unreasonably withheld, conditioned or delayed. The
Executive’s refusal to execute such general release shall
constitute a waiver by the Executive of any and all benefits
referenced in Section 8(a). The Company
will not be obligated to commence or continue any such payments to
the Executive under Section 8(a) in the event
the Executive materially breaches the terms of this Agreement or
the Proprietary Rights Agreement (as defined below) and fails to
cure such breach within thirty (30) days of written notice
thereof detailing such breach.
9.
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 in the form
attached hereto as Exhibit
A (the “Proprietary Rights
Agreement”) on the date hereof.
10.
Documents, Records,
etc. Subject to the terms and provisions of the Proprietary
Rights Agreement: (a) 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; (b) the Executive will return to the Company all
such materials and property as and when requested by the Employer;
and (c) the Executive will return all such materials and property
within ten (10) days upon termination of the Executive’s
employment for any reason.
11.
No Conflict. Each
party hereby represents and warrants to the other that
(a) this Agreement constitutes that party’s legal and
binding obligation, enforceable against it or him in accordance
with its terms, (b) it or his execution and performance of
this Agreement does not and will not breach any other agreement,
arrangements, understanding, obligation of confidentiality or
employment relationship to which it or he is a party or by which it
he is bound, and (c) while the Executive is employed by the
Company, it or he will not enter into any agreement, either written
or oral, in conflict with this Agreement or it or his obligations
hereunder.
12.
Definitions.
a) The
term “Cause” shall mean
(i) the Executive’s intentional, willful or knowing
material failure or unreasonable refusal to follow, support or
enforce any legal or regulatory requirement applicable to the
Company or the Company’s policies, as adopted by the Board of
Directors from time to time and that are provided to Executive
orally or in writing, (ii) the Executive’s intentional,
willful or knowing material failure or unreasonable refusal to
perform the Executive’s duties (other than as a result of
physical or mental illness, accident or injury);
(iii) dishonesty, willful or gross misconduct, gross
ineptitude, or illegal conduct by the Executive in connection with
the Executive’s employment with the Company; (iv) 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
(v) a material breach by the Executive of this Agreement or
the Proprietary Rights Agreement; provided, however, in the cases
of clauses (i) and (iv) above, gross ineptitude, and
“Cause” under the final sentence of this paragraph, the
Company shall be required to give the Executive thirty
(30) calendar days prior written notice of its intention to
terminate the Executive for Cause and the grounds thereof and the
Executive shall have the opportunity during such thirty
(30) day period to meet with a Company representative
designated by the Board and 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 thirty (30) day period for any reason, such termination
shall be considered a termination for Cause. For purposes of this
paragraph (a), no act or failure to act on the part of the
Executive shall be considered “willful” unless it is
intentionally done, or intentionally omitted to be done, by the
Executive in bad faith or without reasonable belief that the
Executive’s action or omission was in the best interests of
the Company. For purposes of this paragraph (a) any willful or
grossly negligent conduct of the Executive that results in the
failure of the Company to comply with a significant financial
statutory or regulatory requirement shall be considered grounds for
termination for Cause.
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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 this Agreement and (iii) a change without the
Executive’s consent in the principal location of the
Company’s office to an office that is either more than 35
miles from the Company’s principal offices or the
Executive’s home address (if such move materially increases
the Executive’s commute) (iv) any material change to
Executive’s duties (absent Executive’s consent)
and (v) the Company’s failure to
obtain an agreement from any successor to the Company to assume and
agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform if no
succession had taken place, except where such assumption occurs by
operation of law; provided that in any event the Executive
shall provide the Company with written notice of the
Executive’s intention to terminate the Executive’s
employment for Good Reason and the grounds thereof within thirty
(30) days after the occurrence of the event that the Executive
believes constitutes Good Reason, and provided further, that the
Executive provides the Company with an opportunity to cure such
event during the thirty (30) day period 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.
c) The
term “person” shall mean any
individual, corporation, firm, association, partnership, other
legal entity or other form of business organization.
13.
Section 409A of
Internal Revenue Code.
a)
Anything in this Agreement to the contrary notwithstanding, if at
the time of the Executive’s separation from service within
the meaning of Section 409A of the Internal Revenue Code
(“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
this 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 this 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 this
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.
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).
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d) The
Company makes no representation or warranty and shall have no
liability to the Executive or any other person if any provisions of
this 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.
14.
Successors and Assigns;
Entire Agreement; No Assignment. This Agreement shall be binding upon, and shall inure to
the benefit of the parties and their respective successors, heirs,
distributes and personal representatives including, with respect to
the Company, the successor of
Company through merger, acquisition, corporate reorganization, or
any other business combination.
This 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/or contemporaneous
arrangements or understandings with respect
thereto. Neither
party may assign this Agreement without the prior
written consent of the other
party; however, the Company may assign this Agreement, without the
consent of the Executive, to any successor (whether direct or
indirect, by purchase, merger, consolidation, or otherwise) to all
or substantially all of the business or assets of the
Company. In the event of any conflict or inconsistency between the
terms and provisions of this Agreement and the terms and provisions
of that certain Asset Purchase Agreement among the Company,
Executive and OpenALPR Technology, Inc., a Florida corporation (the
“Purchase
Agreement”), the terms and provisions of the Purchase
Agreement shall control.
15.
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), or
sent by a nationally recognized courier service, to the following
address (provided that notice of change of address shall be deemed
given only when received):
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If to
the Company:
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00000
Xxxxxxxxxx Xxxxx Xxxxx
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Xxxxxxxxx,
XX 00000
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Attn:
Xxxxxx Xxxxxx, CEO
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If to
Executive:
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Xxxxxxx
Xxxx
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000
Xxxxxxx Xxxxx
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Xxxxxxxx
Xxxxxxxx, XX 00000
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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 15.
A copy of any such notice or
communication under this Section 15 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. An email
notice, by itself, shall suffice as notice at such time as the
sender receives a receipt acknowledgement or the recipient replies,
directly or indirectly, to such notice.
16.
Changes; No Waiver;
Remedies Cumulative. The terms and provisions of this
Agreement 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 this Agreement or any
similar agreement in one instance shall not constitute a waiver of
any rights hereunder with respect to other violations of this or
any other agreement. No remedy conferred upon the Company or the
Executive by this 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. Notwithstanding the
foregoing, if (a) a party fails to provide written notice of an
alleged violation of this Agreement, as provided herein, within one
(1) year of the alleged violation or the date on which the
complaining party should reasonably have become aware of such
alleged violation, whichever is later, or (b) the alleged violation
is not still in existence on the date of said notice and/or (c) the
alleged violation has been ratified by the complaining party prior
to said notice, such alleged violation shall be waived but only as
to said specified instance and not as to all future occurrences of
said alleged violation.
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17.
Governing Law. This
Agreement 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.
18.
Severability. The
Executive and the Company agree that should any provision of this
Agreement be declared illegal, invalid or unenforceable by a Court
of competent jurisdiction, the
validity of the remaining parts, terms or provisions shall not
be affected thereby, and said illegal or invalid part, term or
provision shall be deemed not to be a part of this
Agreement.
19.
Headings;
Counterparts. All section headings are for convenience only.
This Agreement 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.
*****
IN WITNESS WHEREOF, the parties have executed this
Employment Agreement as of the date first above
written.
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By:
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/s/
Xxxxxx
Xxxxxx
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Name: Xxxxxx
Xxxxxx
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Title:
Chief Executive Officer
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EXECUTIVE:
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/s/ Xxxxxxx
Xxxx
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Xxxxxxx
Xxxx
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6
EXHIBIT A
PROPRIETARY RIGHTS AGREEMENT
THIS PROPRIETARY RIGHTS AGREEMENT (the
“Agreement’) dated as of the Effective Date of the
Employment Agreement between the parties of even date herewith
between Novume Solutions, Inc. (the “Company”), a
Delaware corporation, and Xxxx Xxxx (“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)
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 performs any of the services or manufactures
or sells any of the products that are 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.
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(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.
(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.
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(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 two percent (2%) 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
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(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.
10
(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.
11
(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 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.
12
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 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.
(b)
You have not and
will not misappropriate any Invention that you played any part in
creating while working for any former employer.
(c) 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).
(d)
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):
13
If to the
Company:
Novume Solutions,
Inc.
00000
Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx,
XX 00000
Attn
: Xxxxxx Xxxxxx, CEO
If
to
Xxxxxxx
Xxxx
000
Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxxx,
XX 00000
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. An email notice, by itself, shall suffice as
notice at such time as the sender receives a receipt
acknowledgement or the recipient replies, directly or indirectly,
to such notice.
(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.
(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.
14
(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.
15
(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.
Notwithstanding the foregoing, if (a) a party fails to provide
written notice of an alleged violation of this Agreement, as
provided herein, within one (1) year of the alleged violation or
the date on which the complaining party should reasonably have
become aware of such alleged violation, whichever is later, or (b)
the alleged violation is not still in existence on the date of said
notice and/or (c) the alleged violation has been ratified by the
complaining party prior to said notice, such alleged violation
shall be waived but only as to said specified instance and not as
to all future occurrences of said alleged violation.
(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.
16
(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 date in the Employment Agreement. The
Effective Date is the date which this Agreement first becomes
binding on the Company and the Executive.
17
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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By:
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/s/
Xxxxxx
Xxxxxx
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Name: Xxxxxx
Xxxxxx
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Title:
Chief Executive Officer
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/s/ Xxxxxxx
Xxxx
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Xxxxxxx
Xxxx
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18
