Exhibit 10.28
EMPLOYMENT AGREEMENT
This Agreement is made and entered into this 1st day of May, 1998 (the
"Effective Date") by and between NAVIDEC, Inc., a Colorado corporation
("Employer"), and Xxxxxx Xxxxxxxx II ("Employee").
1. Employment. Employer hereby employs Employee and Employee hereby accepts
such employment, subject to the terms and conditions of this Agreement. Employee
shall serve in the capacity of Vice President of Automotive and shall perform
such functions as the Board of Directors of Employer shall determine from time
to time; provided, however, that Employee's duties shall always be professional
in nature and shall utilize and be consistent with the training, talent and
ability of Employee.
2. Full-Time Best Efforts. Employee shall devote his full professional time
and attention to the performance of his obligations under this Agreement, and
shall at all times perform all of his obligations hereunder to the best of his
ability, experience and talent.
3. Term and Termination. The term of this Agreement shall commence on the
Effective Date and shall continue uninterrupted for an initial term of one year,
unless sooner terminated by mutual agreement or as provided below in this
Section 3. This Agreement may be otherwise terminated as follows:
(a) Employer may terminate the employment of Employee hereunder:
(i) upon the death of Employee;
(ii) upon Employee's inability, by reason of sickness or other
disability, to perform his obligations hereunder for more
than ninety consecutive days;
(iii) for any reason upon thirty days' prior written notice; or
(iv) upon thirty days written notice to Employee should any of
the following occur:
a. The sale of substantially all of Employer's assets to a
single purchaser or group of associated purchasers; or,
b. The sale, exchange, or other disposition, in one
transaction of the majority of Employer's outstanding
corporate shares; or
c. Employer's decision to terminate its business and
liquidate its assets;
d. The merger or consolidation of Employer with another
Company; and
e. Bankruptcy or Chapter 11 reorganization of Employer.
(b) Employee may terminate his employment hereunder for any reason
upon at least ten days' prior written notice to Employer.
4. Salary. In consideration for his services, Employer shall pay Employee a
salary at the rate of $87,500 per annum. Employee's salary hereunder shall be
payable in bi-monthly installments, or on such other payment schedule as is used
to pay senior executives of Employer. Employee shall be eligible for a salary
review to occur for annual increases in salary determined by the Board of
Directors of Employer in its sole discretion based upon Employee's performance
and the financial performance of Employer.
5. Additionally, Employer shall reimburse Employee for all business
expenses after the Employee presents an itemized account of expenditures,
pursuant to Employer's policy.
6. Employee Benefits. Employee shall be entitled to such employee
benefits as are from time to time made available generally by Employer to its
senior executives, including, without limitation, paid vacation and sick leave,
health insurance, life insurance, disability insurance and office amenities.
7. Confidentiality.
(a) Definitions.
(i) As used herein, "Employer Materials" shall mean all
equipment, documents or other media or tangible items that contain or embody
Proprietary Information or any other information concerning the business,
products, procedures, operations or plans of Employer, whether such items have
been prepared by him or by others. "Employer Materials" include, but are not
limited to, drawings, charts, graphs, notebooks, customer lists, computer disks,
tapes or printouts, sound recordings and other printed, typewritten or
handwritten documents, as well as samples, prototypes, models, products and the
like.
(ii) As used herein, the term "Proprietary Information" shall
mean the business concepts, inventions, ideas, processes, procedures,
techniques, designs and methods for diagnosis and resolution by Employer of
customer problems with technology products such as computer hardware and
software through a call center for a customer support help desk, and Employer's
related technical training center, and similar technical information, including
without limitation, information about computer programs, whether or not
patentable, utilized or capable of being utilized by Employer in the course of
its business as now or hereafter conducted, as well as marketing methods,
financial information, demographic and trade area information, market
penetration techniques, plans, or schedules, customer profiles, preferences, or
statistics, itemized costs and development plans, and all other matters and
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information developed by Employer or any of its employees, such as internal
business procedures, customer lists, supply information, price lists, market
studies and other information constituting or contributing to the operating
capability of Employer and its customers; provided, however, that such
confidential matter is limited to such matters as Employer does not make
available to the public without restriction or consideration. All of such
Proprietary Information has substantial value to Employer and shall be deemed
trade secrets under the Uniform Trade Secrets Act, and applicable Colorado law.
(iii) As used herein, "Inventions" shall mean all improvements,
inventions, works of authorship, trade secrets, technology, layouts, algorithms,
computer programs, formulas, compositions, ideas, designs, processes,
techniques, know-how and data.
(iv) As used herein, "Rights" shall mean all patent rights,
copyrights, trade secret rights and other intellectual property rights utilized
or capable of being utilized by Employer in the course of its business as now or
hereafter conducted.
(b) Rights of Third Parties.
(i) Employee represents and warrants that Employee's performance
of all the terms of this Confidentiality Provision ("Provision") will not breach
any agreement to keep in confidence proprietary information acquired by him in
confidence or in trust prior to Employee's employment by Employer. Employee has
not entered into, and Employee agrees not to enter into, any agreement either
written or oral in conflict herewith or in conflict with Employee's employment
with Employer.
(ii) Employee represents and warrants that Employee has not and
shall at no time in any manner disclose or otherwise make available to Employer
any invention, formula, secret, process, technique, technology or trade secrets
or other confidential matter which are the property of any other person, firm,
corporation or other organization. Employee shall promptly indemnify Employer
and hold it harmless against any actual or contingent liability, expense or cost
incurred by it as a result of the breach of the foregoing representations and
warranties.
(c) Confidentiality of Proprietary Information and Employer Materials.
Employee acknowledges that all Proprietary Information and Employer Materials,
as defined herein, including any confidential matter developed by the Employee
during any term of employment by Employer, is the sole and exclusive property of
Employer. Employee agrees that the Employee will not disclose such Proprietary
Information to any third party or use such Proprietary Information in any way to
compete with, or in any way adverse to, Employer, except with the prior written
consent of Employer. The obligations hereunder to maintain the confidentiality
of Proprietary Information shall not expire. Employee further agrees that
Employee will not remove any Employer Materials from the business premises of
Employer or deliver any Employer Materials to any person or entity outside
Employer, except with the prior written consent of Employer. Upon termination of
employment by Employer or upon Employer's request, Employee agrees promptly to
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return to Employer all tangible materials constituting or evidencing Proprietary
Information, including all copies, reproductions and extracts thereof, and other
property of Employer, including without limitation Employer Materials.
(d) Trade Secrets, Copyrightable Works and Inventions.
(i) Employee will disclose in writing to Employer immediately
upon conception thereof all Inventions, as defined herein, whether or not
copyrightable or patentable, made or conceived or reduced to practice or
developed by him, either alone or jointly with others, during the term of
Employee's employment by Employer. Employee will also disclose in writing to
Employer all things that would be Inventions if made during the term of
Employee's employment by Employer, conceived, reduced to practice, or developed
by him within six months after the termination of Employee's employment by
Employer.
(ii) Employee shall assign and turn over to Employer, its
successors, nominees and assigns, without any additional compensation
whatsoever, any and all Inventions which are made or conceived or reduced to
practice or developed by him, either alone or jointly with others, during the
term of Employee's employment by Employer, relating or in any way applicable to
any business or field of interest of Employer or arising out of any task
assigned to him by Employer and shall, at Employer's request and expense,
execute, acknowledge and deliver all applications for Copyright and Letters
Patent covering such Inventions, in this and all foreign countries, and all
assignments, contracts and other documents which may be necessary or requested
to vest fully and completely in Employer, its successors, nominees and assigns,
the sole ownership of such Inventions and of all copyrights and patents covering
the same. Employee shall further cooperate fully with Employer, its successors,
nominees and assigns in obtaining, maintaining and defending all such copyrights
and patents.
(iii) Employee agrees that all works of authorship and other
copyrightable works created by him, either alone or jointly with others, during
the term of Employee's employment by Employer, relating or in any way applicable
to any business or field of interest of Employer or arising out of any task
assigned to him by Employer, are works made for hire.
(iv) Employee has attached hereto a complete list of all existing
Inventions or improvements to which Employee claims ownership as of the date of
this Provision and that Employee desires to specifically clarify are not subject
to this Provision, and Employee acknowledges and agrees that such list is
complete. If no such list is attached to this Provision, Employee represents
that Employee has no such Inventions or improvements at the time of signing this
Provision.
(v) If any Inventions or Rights, as defined herein, assigned
hereunder are based on, incorporate or cannot be made and used without violating
any Inventions or Rights owned or licensed by him and not assigned hereunder,
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Employee hereby grants Employer a perpetual, world wide, royalty-free,
non-exclusive sublicensable right and license to exploit and exercise all such
Inventions and Rights in support of Employer's exercise or exploitation of any
assigned Inventions or Rights (including any modifications, improvements and
derivatives thereof).
(e) Miscellaneous
(i) This Provision and all provisions hereof shall bind and inure
to the benefit of Employer, the Employee, and their respective heirs,
successors, personal representatives and assigns. The obligations under
paragraphs 1, 2 and 3 of this Provision shall continue in effect after
termination of the Employee's employment by Employer, regardless of the reason
or reasons for termination, and whether such termination is voluntary or
involuntary on the Employee's part, and Employer is entitled to communicate the
Employee's obligations under this Provision to any future employer or potential
employer of the Employee.
(ii) The Employee acknowledges that Employer will be irreparably
harmed by any breach hereof, that monetary damages would be inadequate and that
Employer shall have the right to have an injunction or other equitable remedies
imposed in relief of, or to prevent or restrain, such breach. The Employee
agrees that Employer shall also be entitled to any and all other relief
available under law or equity for such breach.
(iii) If any legal action arises under this Provision by reason
of any asserted breach of this Provision, the prevailing party shall be entitled
to recover all costs and expenses, including reasonable attorney fees incurred
in enforcing or attempting to enforce any of the terms, covenants, or
conditions, including costs incurred prior to commencement of legal action, and
all costs and expenses, including reasonable attorney fees, incurred in any
appeal from an action brought to enforce any of the terms, covenants, or
conditions.
8. Other.
(a) Entire Agreement. This Agreement contains the complete agreement
between the parties with respect to the subject matter hereof and supersedes any
prior agreements or understandings, written or oral. No waiver under this
Agreement shall be valid unless it is in writing and duly executed by the party
to be charged therewith. This Agreement may be amended at any time, provided
that such agreement is in writing and is signed by each of the parties hereto.
(b) Severability. If any provision of this Agreement shall be held to
be invalid, illegal or unenforceable, such provision may be severed or enforced
to the extent possible, and such invalidity, illegality or unenforceability
shall not affect the remainder of this Agreement.
(c) Binding Effect. This Agreement may not be assigned by Employee.
Subject to that limitation, this Agreement shall be binding upon and shall inure
to the benefit of Employee, his heirs and personal representatives, and shall be
binding upon and shall inure to the benefit of Employer, its successors and
assigns.
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(d) Governing Law. This Agreement and all questions arising hereunder
shall be governed by the laws of the State of Colorado.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
EMPLOYER: EMPLOYEE:
NAVIDEC, INC.
By: /s/ Xxxxx Xxxxxx /s/ Xxxxxx Xxxxxxxx II
----------------------------- --------------------------------------
Xxxxx Xxxxxx, President Xxxxxx Xxxxxxxx II, Vice President
of Automotive
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