Employment Agreement
This
Employment Agreement (“Agreement”) is made as of the ___ day of ____________
2007 between VeruTek Technologies, Inc., a Delaware corporation (the
“Corporation”) and Xxxxxx Xxxx (“Employee”).
WITNESSETH:
WHEREAS,
The Corporation is in the business of environmental remediation (the
“Business”); and
WHEREAS,
Employee desires to continue as an employee of the Corporation and for the
terms
hereof to govern his activities with the Corporation; and
WHEREAS,
Corporation desires to continue to employ Employee as an employee of the
Corporation and define the terms and nature of their relationship, and Employee
desires to continue his employment upon the terms and conditions stated herein;
WHEREAS,
the Corporation wishes to protect its Confidential Information (as defined
herein) and to restrict certain future solicitation and competition by Employee;
WHEREAS,
Employee's execution of this Agreement is a requirement of Employee's continued
employment with the Corporation;
WHEREAS
Employee represents that he is or was the owner of various valuable and secret
trade secrets, methods, and inventions for the use in the field of environmental
remediation of contaminated water, ground, and air;
WHEREAS,
Corporation desires to obtain and/or maintain any and all formulas, methods,
trade secrets, inventions, patents and patent applications now or hereafter
owned by Employee or useful in the remediation of contaminated land, water,
and
air and to obtain the exclusive right to use, manufacture and sell throughout
the world and to license others so to manufacture and sell such remediation
of
contaminated land, water, and air and any future improvements, developments,
inventions, trade secrets, patents or patent applications methods of application
that may be made by Employee both in the past and future;
WHEREAS,
upon execution of this Agreement, concurrently therewith and in consideration
therefore, Employee shall and hereby does release, remise and forever discharge
Corporation and its suppliers and customers from direct or contributor
infringement of any claims of any Employee patent rights by reason of the
manufacture, use or sale of S-ISCO by Corporation or Corporation affiliates,
the
supply of materials for such manufacture by Corporation or Corporation
affiliates, or the use and/or sale of S-ISCO purchased from Corporation or
Corporation affiliates, prior to the effective date of this
Agreement;
WHEREAS,
Employee has the requisite right and authority to grant rights and licenses
under information and letters patent and to perform all obligations under this
Agreement and all attachments hereto. Employee shall disclose to Corporation
and
Corporation shall accept, under the terms and conditions of any separate
agreements all information which is in Employee's possession as of the date
of
this Agreement and which may come into his possession during the term hereof.
In
addition, at the expense of Corporation, Employee shall assist Corporation
in
obtaining, defending, developing, and enforcing patents, worldwide which are
based on or relate to such confidential and proprietary information whether
conceived or reduced to practice by him. Employee shall at all times keep
Corporation informed of all inventions techniques, formulas, proprietary
information, made, conceived, by him in whole or in part which either result
from any work he may do at the request of Corporation, as is required by this
agreement, or affiliated companies, present or contemplated activities,
investigations or obligations (the "proprietary information"). Affiliated
companies shall mean companies with which joint enterprises are carried on
or in
which the Corporation has any interest;
WHEREAS,
no representation or warranty has been or is made by either party hereto to
the
other party that S-ISCO may be manufactured, used or sold free of patent rights
or proprietary rights of others; it being understood that neither party hereto
shall be liable to the other for any loss, damage or expense arising from any
claim of patent or other proprietary right infringement upon the manufacture,
use or sale of S-ISCO or the exercise of any license or right under this
Agreement;
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WHEREAS,
Employee represents and warrants to Corporation that (a) he is legally free
to
make and perform this Agreement, (b) he has no obligation to any other person
or
entity that would or will affect or conflict with any of his obligations under
this Agreement, (c) the execution and delivery of this Agreement, and the
performance by him of his obligations under this Agreement, will not, with
or
without the giving of notice and/or the passage of time, (i) violate any law,
regulation, judgment, writ, injunction, decree or order of any court, arbitrator
or governmental agency applicable to him or (ii) conflict with, result in the
breach of any provision of or the termination of, or constitute a default under,
any agreement to which Employee is a party or by which Employee is or may be
bound, including without limitation, any non-competition covenant or agreement
binding on, or agreed to, or entered into by, Employee; and
WHEREAS,
the parties hereto agree that this Agreement shall supersede any other
agreements regarding Employee’s provision of services to the Corporation,
including, without limitation, that certain agreement effective as of January
1,
2006.
NOW,
THEREFORE, in
consideration of the premises, in further consideration of Employee’s employment
or continued employment by Corporation, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Corporation and Employee hereby agree as follows:
1. Incorporation
of Recitals.
The
above
recitals are, and shall be construed to be, an integral part of this Agreement.
The parties hereto acknowledge and agree that this Agreement formalizes in
writing certain understandings and procedures which have been in effect since
the time Employee was initially employed and/or engaged by the
Corporation.
2. Scope
of Employment.
A. The
Corporation agrees that during the term of this Agreement, the Corporation
shall
employ Employee to perform such duties and exercise such authority which are
of
the type and nature normally assigned to such employees of a corporation of
the
size, stature, and nature of the Corporation, as the Board of Directors of
the
Corporation may from time to time assign, including, without limitation, to
develop, improve, invent, and discover methods for the remediation of polluted
water, ground and air.
B. Employee
hereby accepts such employment and agrees that during the term of this Agreement
that:
(i) Employee
will perform such duties in the foregoing capacity, and agrees that fiduciary
duties normally applicable to corporate officers, including, without limitation,
those of loyalty and due care, shall be applicable to Employee;
(ii) Employee
will devote his working time and attention, as well as his best efforts and
abilities to the performance of his duties hereunder and to the affairs of
the
Corporation, and shall not engage in any other gainful employment or other
provision of services to a third party, or other commercial or business activity
without the prior written consent of the Corporation;
(iii) Employee
will not engage in any other activities which conflict, interfere with or
otherwise adversely affect in any way the proper discharge of his duties
hereunder and compliance with the covenants of Employee contained
herein;
(iv)
Employee
will not enter into contracts or commitments on behalf of the Corporation
without the prior written authorization of the Board of Directors or an
authorized Officer, and Employee acknowledges and agrees that he shall not
have
any authority to do so without such prior consent; and
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(v) Employee
will comply with all lawful policies which from time to time may be in effect
at
the Corporation or adopted by the Corporation and conveyed to
Employee.
3.
Compensation.
As
compensation for the services to be performed by Employee hereunder, the
Corporation agrees to pay to Employee, and Employee agrees to accept, the
following:
A. Base
Compensation. Employee shall receive Base Compensation during the term of this
Agreement commencing at the salaried rate of $337,500 per annum in respect
of
his employment hereunder, less applicable payroll deductions required by law.
Such Base Compensation shall be paid in substantially equal semi-monthly
installments, or more frequently in accordance with the policies of the
Corporation. Employee is also eligible to receive a discretionary bonus, which
is determined in the sole discretion of the Board of Directors and is not earned
unless Employee remains employed with the Corporation at the time any such
bonus
may be delivered.
B.
Employee
Benefits. In addition to Employee’s Base Compensation, the Corporation shall
make available to such Employee, during the term hereof:
(i) Participation
in any plans, to the extent such plans are available to all similarly situated
employees (unless restricted due to Employee’s income level), which are from
time to time offered to the Corporation’s employees with respect to group
health, life, accident and disability insurance or payment plans, retirement
plans, profit sharing or similar employee benefits, if any, but exclusive of
the
Corporation’s Incentive Plan pursuant to which Employee’s participation is
described below.
(ii) Four
(4)
weeks (i.e. twenty business days) paid annual vacation, accrued based upon
time
employed (i.e. accrued at the rate of five (5) days for each calendar quarter),
as well as paid holidays designated as such by the Corporation, and other fringe
benefits regularly provided to the similarly situated employees of the
Corporation; and
(iii) Except
as
set forth in this subparagraph, the Corporation shall reimburse Employee for
all
reasonable and necessary business expenses incurred by Employee in connection
with Employee’s performance of services hereunder if and only if the Employee
receives the Corporation’s written approval of any such expense prior to
incurring the expense and, if the expense was necessary but no such advance
approval was obtained, the Corporation shall reasonably consider reimbursement
of the expense in accordance with corporate policy. The Corporation shall
reimburse Employee for such expenses as soon as it is practicable in accordance
with the Corporation’s reimbursement policy following submission to the
Corporation by Employee of a written itemized account of such expenditures,
together with receipts therefor, all in accordance with the Corporation’s policy
and with applicable law, rules and regulations governing deductibility of such
amounts under the Internal Revenue Code of 1986, as amended.
C. Discretionary
Bonus. The Board of Directors may elect on a annual basis to provide Employee
with a discretionary bonus of up to 50% of Employee’s then current rate of Base
Compensation.
D. Option
to
Acquire Stock. To the extent that the Corporation has a stock option or other
similar incentive plan in place, Employee shall only be eligible to participate
in such plan to the extent that Employee’s total ownership in the Corporation is
less than ten percent (10%) of all issued and outstanding stock.
4. Termination.
A. Termination
by the Corporation with Cause. The Corporation may terminate Employee’s
employment with “Cause” as hereafter defined in this Section 4A upon written
notice. “Cause” shall mean Employee’s: (i) conviction of, or indictment for,
criminal negligence or criminal acts in the work place or conviction of a
felony, (ii) violation of the Corporation’s material policies or procedures that
have been made known to Employee, or violation by Employee on Corporation
premises of any law or material regulation, (iii) material breach or violation
of this Agreement, (iv) commission of any act of theft, fraud, dishonesty,
or
falsification of any employment or Corporation records, (v) appropriation of
a
business opportunity or transaction in contravention of Employee’s duties to the
Corporation, (vi) any improper action by Employee which has a detrimental effect
on the Corporation’s reputation or business, (vii) failure to perform the duties
assigned or requested by Employee’s superiors, or (viii) gross negligence,
incompetence or willful misconduct by Employee in the performance of Employee’s
duties. In the event that Employee is terminated with “Cause,” Employee shall
only be entitled to the payment of Employee’s then-current accrued, unpaid Base
Compensation and accrued unused vacation, each prorated through the date of
termination. In the case of an event of Cause under clauses (ii), (iii), (vi)
or
(vii), with the exception of any such events of Cause arising from breach of
any
of the provisions of Sections 7-13 hereof, Employee shall be provided the
opportunity to cure such event within a reasonable time following written notice
thereof and not to exceed thirty (30) days following such notice (the “Cure
Period”), and if the Employee desires to effect a cure to same then Employee
shall provide the Corporation with written notice within five business days
following receipt of notice of Cause of such desire, and in the absence of
such
cure by Employee within the Cure Period Employee shall be deemed terminated
upon
the expiration of the Cure Period unless otherwise mutually agreed in writing.
However, notwithstanding the foregoing, Employee shall not be provided the
opportunity pursuant to the foregoing sentence to cure Employee’s repeated or
persistent actions, failures or omissions occurring within a three month period
which constitute Cause (in the absence of cure) hereunder and which would
otherwise be curable but for such reoccurrence.
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B. Termination
by the Corporation Without Cause. The Corporation may terminate Employee’s
employment without Cause upon fourteen (14) days written notice. In the event
that Employee is terminated without Cause, Employee shall be entitled to (i)
payment of Employee’s then-current accrued, unpaid Base Compensation and
accrued, unused vacation, each prorated through the date of termination, and
(ii) an amount in respect of individual severance pay equal to the then current
full year Base Compensation plus Bonus Compensation. During the fourteen (14)
day period following the delivery of such notice, Employee shall reasonably
cooperate with the Corporation in arranging for an orderly transference of
his
responsibilities.
C. Termination
by Employee Without Good Reason. Employee may terminate his employment without
Good Reason upon thirty (30) days prior written notice. In the event that
Employee terminates his employment without Good Reason, Employee shall be
provided with payment of Employee’s then-current unpaid Base Compensation and
accrued, unused vacation, each prorated through the date of termination. During
the thirty (30) day period following the delivery of such notice, Employee
shall
reasonably cooperate with the Corporation in locating and training Employee’s
successor and arranging for an orderly transference of his responsibilities.
D.
Termination by Employee for Good Reason. Employee may terminate his employment
hereunder for Good Reason. “Good Reason” shall mean (i) a material diminution of
Employee’s employment duties without Employee’s consent, which consent shall not
be unreasonably withheld; (ii) a material and persistent breach by the
Corporation of Section 3 hereof. Employee shall provide the Corporation thirty
(30) days prior written notice of his intention to resign for Good Reason which
states his intention to resign and sets forth the reasons therefore, and any
resignation without delivery of such notice shall be considered to be a
resignation for other than Good Reason. In the event that Employee terminates
his employment pursuant to this Section 4D, Employee shall be entitled to (i)
payment of Employee’s then-current accrued, unpaid Base Compensation and
accrued, unused vacation, each prorated through the date of termination, and
(ii) an amount in respect of individual severance pay equal to the then current
full year Base Compensation plus Bonus Compensation. During the thirty (30)
day
period following the delivery of such notice, Employee shall reasonably
cooperate with the Corporation in locating and training Employee’s successor and
arranging for an orderly transference of his responsibilities.
E. Termination
Due to Employee’s Death or Disability. In the event that this Agreement and
Employee’s employment is terminated due to Employee’s death or disability,
Employee (or Employee’s legal representatives) shall be paid Employee’s
then-current unpaid Base Compensation and accrued, unused vacation, each
prorated through the date of termination. For purposes of this Agreement, the
term “disability” shall mean the mental or physical inability to perform
satisfactorily the essential functions of Employee’s full-time duties, with or
without a reasonable accommodation, as determined by a physician mutually agreed
by the Corporation and Employee, such agreement not to be unreasonably withheld;
provided, however, that any disability which continues (subject to any
requirements of applicable law) for one hundred and twenty (120) days (whether
or not consecutive) in any twenty-four (24) month period shall be deemed a
total
and permanent disability.
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5. Disposition
of Options on Termination.
To
the
extent Employee has been issued an option to acquire shares of the Corporation’s
common stock (the “Option,” at any point during Employee’s employment, in the
event of termination of Employee’s employment with the Corporation for any
reason, any unvested Options shall immediately lapse upon notice of such
termination, and any vested Options must be exercised within the time limits
set
forth in the applicable option agreement or grant letter, or they will also
lapse.
6. Employee
Work Standards
Employee
will: a) serve Corporation (and such of its subsidiary or parent companies
as
Corporation may designate) faithfully, diligently and to the best of Employee’s
ability in a loyal and dedicated manner under direction of the Director(s)
and
Officers of Corporation; b) in the course of employment, devote his/her best
efforts and substantially all his/her entire time, attention, energy,
experience, talent, expertise and knowledge to the performance of his/her duties
to Corporation; c) not engage in any other gainful employment or engagement
or
other commercial or business activity not for the benefit of the Corporation
without the prior written consent of the Corporation; and d) not do anything
inconsistent with Employee’s duties to Corporation; e) comply with all lawful
policies which from time to time may be in effect at the Corporation or adopted
by the Corporation and conveyed to Employee and f) perform his/her duties as
a
professional at all times and will conduct all activities in accordance with
the
highest professional standards.
7. Representations,
Warranties and Certain Covenants of Employee.
Employee
hereby represents, warrants and covenants to the Corporation that:
A. Employee
is not subject to any agreement, including any confidentiality, non
solicitation, non competition, or invention assignment, agreement or other
restrictive covenant, whether oral or written, which would in any way restrict
or prohibit Employee's ability to execute this Agreement, perform Employee’s
obligations under this Agreement or otherwise comply with the terms of this
Agreement;
B. Employee
has respected and at all times in the future will continue to respect the rights
of Employee's previous employer(s) in trade secret and confidential information
(including with respect to proprietary documents, computer software programs,
computer discs, customer lists, and any other material which is proprietary
to
Employee's previous employer(s)) in accordance with applicable agreements,
if
any, and applicable law;
C. Employee
has left with Employee’s previous employers all proprietary documents, computer
software programs, computer discs, customer lists, and any other material which
is proprietary to Employee's previous employer(s), has not taken copies of
any
such materials and will not remove or cause to be removed any such material
or
copies of any such material from such previous employer(s) in violation of
Employee’s agreements, if any, with previous employers;
D. Employee
has not (since the date of his employment or engagement with the Corporation)
done, and thereafter will not do anything, by contract or otherwise, which
would
impair the rights of the Corporation in and to any Corporation Developments
(as
defined below), the Corporation Materials (as defined below), or the ability
of
Employee to perform Employee's obligations under this Agreement;
E. Employee
shall not, during the term of his employment with the Corporation, do anything
or authorize any other person or entity to do anything contrary to the material
rights and interests of the Corporation in contravention of Employee’s
obligations under this Agreement.
F. The
information Employee supplied to the Corporation in connection with Employee’s
employment is true, correct, and complete;
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G. So
long
as Employee remains employed by the Corporation, any and all business
opportunities from whatever source which Employee may receive or otherwise
become aware of in connection with his employment with the Corporation relating
to the business of the Corporation shall belong to the Corporation, and unless
the Corporation specifically, after full disclosure by Employee of each and
any
such opportunity, waives its right in writing, the Corporation shall have the
sole right to act upon any of such business opportunities as the Corporation
deems advisable; and
H.
Employee
has no inventions, improvements, discoveries, software or writings useful to
the
Corporation in the normal course of its business, which were conceived, made
or
written prior to the commencement of my employment or engagement with the
Corporation and which are excluded from this Agreement, except as described
in
Schedule 7H attached hereto.
8. Work
for Hire and Invention Assignment.
8.1
Employee
agrees to promptly disclose to Corporation any and all inventions, improvements,
methods, processes, concepts, secrets, ideas, trademarks, designs, technologies,
computer software, software code, original works of authorship, formulas,
discoveries, patentable subject matter, copyrightable works, products, marketing
and business ideas, and all other improvements, know-how, data, rights, and
claims related to the foregoing, whether or not patented or patentable, or
subject to copyright, trademark or service xxxx protections, and whether or
not
reduced to practice, which are made, conceived, developed or written by Employee
during the term of employment with the Corporation and either in connection
with
the duties of Employee, or which are capable of being used by the Corporation
in
connection with its business (collectively, “Developments”), including those
which: (i) relate to the Corporation’s current or contemplated business or
activities; (ii) relate to the Corporation’s actual or demonstrably anticipated
research or development; (iii) result from any work performed by Employee for
the Corporation; (iv) involve the use of the Corporation’s equipment, supplies,
facilities or trade secrets; (v) result from or are suggested by any work done
by the Corporation or at the Corporation’s request, or any projects specifically
assigned to Employee; or (vi) result from Employee’s access to any of the
Corporation’s memoranda, notes, data, formulae, specifications, inventions,
processes, equipment or other materials (the items in this clause (vi)
collectively, “Corporation Materials”). All such Developments shall belong to
and become the property of the Corporation. The provisions of this Section
shall
not apply to developments for which no equipment, supplies, facilities, or
trade
secret information of the Corporation was used and which were developed on
the
Employee’s own time, unless (i) the development relates to the business of
Corporation or to the Corporation’s actual or demonstrably anticipated research
or development, or (ii) the development results from any work performed by
the
Employee for the Corporation.
8.2 Employee
agrees that any and all work performed hereunder and any resulting Developments
shall be “work made for hire” within the meaning of the Copyright Act of 1976,
as amended. Employee hereby assigns to the Corporation his or her entire right,
title and interest in said Developments. Furthermore, Employee shall execute
all
instruments of assignment and any other documents requested by Corporation
relating to the Corporation’s ownership of any and all Developments or to
applications for patents, copyrights and trademarks and the enforcement and
protection thereof.
8.3 Employee
shall xxxx all Developments with the Corporation’s copyright or other
proprietary notice as directed by the Corporation and shall take all actions
deemed necessary by the Corporation to protect the Corporation’s rights therein
including, without limitation, the maintenance of such item in confidence to
the
same degree as required for Confidential Information (as herein defined) or
as
otherwise instructed by the Corporation. In the event that the Developments
shall be deemed not to constitute works made for hire, or in the event that
Employee should otherwise, by operation of law, be deemed to retain any rights
(whether moral rights or otherwise) to any Developments, Employee agrees to
assign to the Corporation, without further consideration, Employee’s entire
right, title and interest therein.
8.4 Employee
agrees to keep and maintain adequate and current written records of all
Developments and their development made by Employee (solely or jointly with
others) during the term of Employee’s employment with the Corporation. These
records will be in the form of notes, sketches, drawings, and any other format
that may be specified by the Corporation. These records will be available to
and
remain the sole property of the Corporation at all times.
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8.5
Employee
further agrees that all information and records pertaining to any idea, process,
trademark, service xxxx, invention, technology, computer hardware or software,
original work of authorship, design, formula, discovery, patent, copyright,
product, and all improvements, know-how, rights, and claims related to the
foregoing (“Intellectual Property”), that Employee does not believe to be a
Development, but that is conceived, developed, or reduced to practice by the
Corporation (alone by Employee or with others) during the Employee’s employment
with the Corporation and for six months thereafter, shall be disclosed promptly
by Employee to the Corporation (such disclosure to be received in confidence).
The Corporation shall examine such information to determine if in fact the
Intellectual Property is a Development subject to this Agreement.
8.6
Because
of the difficulty of establishing when any Developments are first conceived
by
Employee, or whether they result from Employee’s access to Confidential
Information or Corporation Materials, Employee agrees that any Development
shall, among other circumstances, be deemed to have resulted from Employee’s
access to Corporation Materials if: (i) it grew out of or resulted from
Employee’s work with the Corporation or is related to the business of the
Corporation, and (ii) it is made, used, sold, exploited or reduced to practice,
or an application for patent, trademark, copyright or other proprietary
protection is filed thereon, by Employee or with Employee’s significant aid,
within six months after termination of Employee’s employment with the
Corporation.
8.7
Assistance.
Employee further agrees to reasonably assist the Corporation in every proper
way
(but at the Corporation’s expense) to obtain and from time to time enforce
patents, copyrights, or other rights or registrations with respect to
Developments in any and all countries, and to that end will execute all
documents necessary:
(i) to
apply
for, obtain and vest in the name of the Corporation alone (unless the
Corporation otherwise directs) letters patent, copyrights, or other analogous
protection in any country throughout the world and when so obtained or vested
to
renew and restore the same; and
(ii) to
defend
any opposition proceedings in respect of such applications and any opposition
proceedings or petitions or applications for revocation of such letters patent,
copyright or other analogous protection; and
(iii) to
cooperate with the Corporation (but at the Corporation’s expense) in any
enforcement or infringement proceeding on such letters patent, copyright or
other analogous protection.
9. Covenant
9.1
Covenant.
Employee
acknowledges and agrees that:
A. During
the course of Employee's employment with the Corporation, Employee will learn
about, will help to develop and will develop, and will be entrusted in strict
confidence with (1) confidential and proprietary information and trade secrets
that are or will be owned by the Corporation and are not available to the
general public or the Corporation’s competitors concerning the Corporation,
including its sales, operations, financial condition, financial projections,
profit margins, personnel matters (including the identity of the Corporation’s
top-performing personnel, hiring criteria, and training techniques),
intermediate and long-term business goals and strategic plans, promotional
strategies and techniques, pricing and cost structure of services, customer
identities, customer relationship histories, customer records, customer service
matters, customer preferences, needs and idiosyncrasies, formal customers and
prospects, identity of vendors and suppliers, special vendor and supplier
pricing and delivery terms, computer programs and codes, research and
development, specifications, algorithms, processes, formulas methods, technical
data, know-how, complications, designs, drawings, photographs, other
machine-readable records, business activity and other confidential aspects
of
the Corporation and its business and operations; (2) information which the
Corporation will be required to keep confidential in accordance with
confidentiality obligations to third parties; and (3) other matters and
materials belonging to or relating to the internal affairs of the Corporation,
including information recorded on any medium which gives it an opportunity
to
obtain an advantage over its competitors which do not know or use the same
or by
which the Corporation derives actual or potential value from such matter or
material not generally being known to other persons or entities which might
obtain economic value from its use or disclosure (all of the foregoing being
hereinafter collectively referred to as the "Confidential
Information");
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B. It
is
imperative that the Employee treat whatever information Corporation wants to
protect from disclosure as genuinely “Confidential,” i.e. restricting access by
pass code, stamping hard copies of customer and prospect lists “Confidential,”
and restricting access to the customer and prospect lists except by personnel,
and the like.
C. The
Corporation has developed or purchased and will develop or purchase the
Confidential Information at substantial expense in a market in which the
Corporation faces intense competitive pressure, and the Corporation has kept
and
will keep secret the Confidential Information;
D. The
Corporation’s customer relationships are or will be near permanent and such
relationships are significant assets belonging to the Corporation which have
been or will be developed through a substantial investment of time, effort,
and
expense in the Corporation’s worldwide market, and, as a result of Employee’s
employment with the Corporation, (i) Employee will have contact with such
customers which he would not otherwise have had and (ii) such customers will
associate the Corporation’s goodwill with Employee;
E. The
Corporation has developed and will develop a wealth of intimate knowledge
regarding its customers, and the identity of the Corporation’s customers is not
generally known in the worldwide community in which the Corporation’s businesses
are located; and, for these and other reasons, the Corporation has a legitimate,
protectable interest in the identity of its customers and the method of
operations of its Business;
F. Employee’s
skills in the area of Corporation’s Business will be developed and enhanced as a
result of Employee’s employment relationship with the Corporation;
G. The
Corporation has a legitimate interest in protecting the goodwill, customer
information, customer relationships, and use of Employee’s skills by means of
enforcement of the restrictive covenants set forth in this
Agreement;
H. Nothing
in this Agreement shall be deemed or construed to limit or take away any rights
the Corporation may have, at any time, under common law or as to any of the
Confidential Information that constitutes a trade secret under the Delaware
Trade Secrets Act or common law.
I. For
purposes of this Agreement, “customer” or “client” includes any person or entity
(including, but not limited to, state, local, municipal or federal government
entities) who is then a customer or client of the Corporation, or its affiliates
or subsidiaries, and any person or entity who was a customer or client at any
time during the preceding thirty-six months, and any prospective customers
or
clients with which Employee has knowledge (actual or constructive) that the
Corporation has been either actively marketing (which shall include, without
limitation, the delivery by Corporation of an informal or formal proposal during
the prior one year period) or soliciting the sale of the Corporation’s products
or services to it, or negotiating with the prospect to become a customer or
client of the Corporation.
9.2
Confidentiality
Covenants.
In
consideration of Employee’s employment and compensation and other consideration
described herein, Employee acknowledges and agrees that:
A. To
the
extent that Employee developed or had access to Confidential Information before
entering into this Agreement, Employee represents and warrants that he has
not
used for his own benefit or for the benefit of any other person or entity,
and
he has not disclosed, directly or indirectly, to any other person or entity,
other than the Corporation, any of the Confidential Information. Unless and
until the Confidential Information becomes publicly known through legitimate
means not involving an act or omission by Employee or the Corporation’s other
employees or independent contractors:
(i) The
Confidential Information is, and at all times hereafter shall remain, the sole
property of the Corporation;
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(ii) Employee
shall use his best efforts and the diligence to guard and protect the
Confidential Information from disclosure to any competitor, customer or supplier
of the Corporation or any other person, firm, corporation, or other
entity;
(iii) Unless
the Corporation gives Employee prior express written permission, during his
employment and thereafter, Employee shall not use for his own benefit, or
divulge to or use for the benefit of any competitor or customer or any other
person, firm, corporation, or other entity, any of the Confidential Information
which Employee may obtain, learn about, develop, or be entrusted with as a
result of Employee's employment by the Corporation; and
(iv) Except
in
the ordinary course of the Corporation's Business, Employee shall not seek
or
accept any Confidential Information from any former, present, or future
contractor or employee of the Corporation.
B. Employee
also acknowledges and agrees that all documentary and tangible Confidential
Information including, without limitation, such Confidential Information as
Employee has committed to memory, is supplied or made available by the
Corporation to Employee solely to assist him in performing his duties under
this
Agreement. Employee further agrees that upon termination of his employment
with
the Corporation for any reason:
(i) Employee
shall not remove from Corporation property, and shall immediately return to
the
Corporation, all documentary or tangible Confidential Information in his
possession, custody, or control and not make or keep any copies, notes,
abstracts, summaries, tapes or other record of any type of Confidential
Information; and
(ii) Employee
shall immediately return to the Corporation any and all other Corporation
property belonging to or within the custody or possession of the Corporation
or
as to which the Corporation has the right of possession, in his possession,
custody or control, including, without limitation, all internal manuals,
customer or client work papers, data, software, and other written materials
(and
all copies thereof) prepared for internal use by the Corporation or used in
connection with the Business or operations of the Corporation, any and all
keys,
security cards, passes, credit cards, and marketing literature.
10. Return
of Material.
Upon
termination of employment with Corporation, and regardless of the reason for
such termination, or upon the Corporation’s request, Employee will leave with,
or promptly return to Corporation and its customers all documents, records,
notebooks, magnetic tapes, disks, computers, network hardware, and other
materials, including all copies in his/her possession or control which contain
Confidential Information of Corporation and its customers and prospects or
any
other information concerning Corporation and its customers, prospects, products,
services or customers, whether prepared by the Employee or others, including,
without limitation, Corporation Materials and Developments.
11. Non-Solicitation
of Employees.
In
consideration of his employment and compensation and other consideration
described herein, Employee agrees that Employee will not during both the term
of
this Agreement and the twenty four (24) months following the termination of
Employee's employment, without the written consent of the Corporation, for
any
reason, directly or indirectly, or by action in concert with others, induce
or
influence, or seek to induce or influence, any person who is engaged by the
Corporation as an employee, agent, independent contractor or otherwise, to
terminate his/her employment or engagement , nor shall Employee prior to the
expiration of such period, directly or indirectly, solicit for employment or
engagement, employ or engage, attempt to employ or engage, or advise or
recommend to any other person or entity that such person or entity employ or
engage or solicit for employment or engagement, any person or entity employed
or
engaged by the Corporation.
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12.
Non-Solicitation of Customers.
In
consideration of his employment and compensation and other consideration
described herein, Employee agrees that prior to the termination of and for
a
period of twenty four (24) months immediately following the termination of
Employee's employment with the Corporation, Employee will not, either for
himself or on behalf of any other person or entity, directly or indirectly,
solicit, attempt or offer to provide services or products or provide services
or
products, competitive with those services rendered or products sold by or on
behalf of the Corporation during the term of this Agreement, to any past or
present customer or client (each as defined in Section 9.1) of the Corporation.
13.
Covenants Not To Compete and Anti-Piracy.
13.1 Employee
acknowledges that the services rendered by Employee on behalf of the Corporation
are of a special and unique character, and that during the performance of such
services, Employee will acquire, because of the special relationship among
the
Corporation, Employee and the Corporation’s customers and clients, valuable
information, trade secrets, customer lists, proprietary information, financial
information and unique skills. Accordingly, Employee covenants, in consideration
of Employee’s employment and compensation and other consideration described
above, that while Employee is employed by the Corporation and for the Noncompete
Period (as herein defined) after the termination of Employee’s employment with
the Corporation for any reason, Employee shall not without the prior written
consent of the Corporation, (i) directly or indirectly, engage in any activity
which is competitive with the Business of the Corporation or (ii) own, manage,
join, invest in, finance or control, accept employment with, or provide
consulting or advisory services to, directly or indirectly, any Competitive
Business. “Noncompete Period” shall mean a period of twelve months.
13.2 “Competitive
Business” shall mean any person, firm, corporation, proprietorship, partnership
or other entity or commercial venture that competes in the Business within
the
United States. Nothing contained in this Agreement shall prevent Employee from
owning, directly or indirectly, solely for investment purposes up to one percent
(1.0%) of the outstanding shares of capital stock of any corporation whose
stock
is listed on a national securities exchange or is traded in the over-the-counter
market or from having a passive ownership interest in any entity, provided
such
entity does not operate a Competitive Business.
13.3. Employee
acknowledges that in the event that Employee’s employment with the Corporation
terminates, Employee will be able to earn a livelihood without violating the
foregoing covenants.
14. Equitable
Relief.
Employee
acknowledges and agrees that the business of the Corporation is highly
competitive, and that violation of any of the covenants and agreements provided
for in Sections 7-13 of
this
Agreement would cause immediate, immeasurable and irreparable harm, loss and
damage to the Corporation not adequately compensable by a monetary award.
Accordingly, Employee agrees, without limiting any of the other remedies
available to the Corporation, that any violation of said covenants, or any
of
them, may be enjoined or restrained by any court of competent jurisdiction,
and
that any temporary restraining order or emergency, preliminary or final
injunctions may be issued by any court of competent jurisdiction, without notice
and without bond. In the event any proceedings are commenced by the Corporation
for any actual or threatened violation of any of said covenants or agreements
or
the Corporation shall engage legal counsel or incur other costs and expenses
related to the enforcement of said covenants or agreements, Employee shall
be
liable to the Corporation to the extent the Corporation is the prevailing party
in such proceedings (or in the absence of a proceeding, to the extent the
services of attorneys and the incurrence of such other costs and expenses were
reasonably required for the Corporation’s enforcement of the provisions of this
Agreement, as determined by the Corporation’s Managing Directors) for all
reasonable costs and expenses of any kind, including reasonable attorneys'
fees,
which the Corporation has incurred in connection with such proceedings or
enforcement activities, including, without limitation, in connection with the
enforcement of the provisions of this Section 14. Employee acknowledges that
in
the event that Employee’s employment with the Corporation terminates, Employee
will be able to earn a livelihood without violation of the aforesaid covenants
of this Agreement.
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15. Nature
of Relationship.
This
agreement clarifies certain rights and duties of Corporation and Employee.
Corporation and Employee each acknowledge and agree that Employee’s employment
with Corporation is for a period up through and including December 31, 2016
(the
“Term”), and may be extended by written consent of Employee and the Board of
Directors. Notwithstanding the above, the parties acknowledge that such
employment and/or this Agreement may be terminated by either Corporation or
Employee at any time and for any reason, with or without cause, in accordance
with the terms of this Agreement; provided, however, that Employee agrees he/she
shall give Corporation thirty (30) days prior written notice of Employee’s
intent to resign/terminate. Subject to the other provisions of this Agreement,
Employee recognizes he is employed as an “at-will” employee and that this
Agreement and Employee’s employment with the Corporation may be terminated at
any time by the Corporation and at Corporation’s sole discretion.
16. Outside
Activities
Employee
agrees that during the period of his/her engagement, Employee will not, without
Corporation’s prior written approval, directly or indirectly engage in any
outside employment or consulting activity relating to any line of business
which
Corporation and its customers are engaged, or which would otherwise conflict
with or adversely affect in any way Employee’s performance of his/her engagement
obligation to Corporation.
17.
Binding Effect and Benefit.
The
provisions hereof shall be binding upon, and shall inure to the benefit of,
Employee, his heirs, executors, and administrators as well as to Corporation,
its successors, and assigns; however, Employee’s services under this personal
services contract are not assignable by Employee.
18.
Waivers.
No
delay
on the part of any party in the exercise of any right or remedy shall operate
as
a waiver thereof, and no single or partial exercise or waiver thereof by any
party of any right or remedy shall preclude the exercise or further exercise
thereof or the exercise of any other right or remedy.
19.
Governing Law.
This
Agreement, its interpretation, performance, enforcement or any breach thereof,
shall be construed in accordance with, and all questions with respect thereto
shall be determined by, internal, substantive laws of the State of Delaware
(without giving effect to principles of conflict of laws). In connection with
any judicial proceeding: (i) the parties consent to the exclusive jurisdiction
of the state and federal courts having jurisdiction in Connecticut or Delaware
and the parties waive any objection which it may now or later have to the laying
of venue of any legal action or proceeding arising out of or relating to this
Agreement brought in any such court or that such forum is inconvenient; (ii)
both parties waive personal service and agree that service of any pleading,
notice, complaint, etc. may be served by certified or registered mail by one
party to the other party at such other party’s address for notices as set forth
herein; and (iii) such service shall be deemed effective as if personally served
upon the receiving party at its principal place of business or residence.
Nothing herein affects the right to serve process in any other manner permitted
by law.
20.
Severability; Interpretation.
Whenever
possible, each of the provisions of this Agreement shall be construed and
interpreted in such a manner as to be effective and valid under applicable
law.
If any provisions of this Agreement (including but not limited to Sections
9-13)
or the application of any provision of this Agreement to any party or
circumstance shall be prohibited by, or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition without
invalidating the remainder of such provision, any other provision of this
Agreement, or the application of such provision to other parties or
circumstances. Headings used in this Agreement are for convenience of reference
only.
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21.
Entire Agreement.
Any
and
all prior discussions, understandings, and agreements, whether written or oral,
express or implied, including, without limitation, any offer letter, held or
made between Employee and the Corporation are superseded by and merged into
this
Agreement, which alone fully and completely expresses the agreement of the
parties with regard to the matters addressed herein, and this Agreement is
entered into with no party relying on any statement or representation made
by
any other party which is not contained in this Agreement.
22. Amendments.
This
Agreement may be modified, amended or supplemented only by execution of a
written instrument signed by both Employee and the Corporation.
23. Survival.
The
provisions of Sections 4, 5, 7-14 and 17-26 shall survive any termination of
Employee’s employment hereunder and any termination or expiration of this
Agreement.
24.
Notice.
Any
notices or communications hereunder will be deemed sufficient if made in writing
and hand-delivered, or if sent by facsimile with confirmation of transmission
retained, or if mailed, postage prepaid, registered or certified mail, return
receipt requested, or if sent by nationally recognized overnight courier, to
the
following addresses:
|
If
to the Corporation:
|
If
to Employee:
|
|
Xxxxxx
Xxxx
|
|
|
000
Xxxxxx Xxxxxx, Xxxxxxxx 0
|
00
Xxxxxx Xxxxx
|
|
Xxxxx
000
|
Xxxxxxxxx,
XX 00000
|
|
Xxxxxxxxxxx,
XX 00000
|
|
|
Attention:
CEO or President
|
or
to
such other address as either party may designate for such party by written
notice to the other given from time to time in the manner herein
provided.
25. Presumptions.
In
resolving any dispute or construing any provision hereunder, there shall be
no
presumptions made or inferences drawn because the attorneys for one of the
parties drafted the Agreement.
26. Counterparts.
This
Agreement may be executed in one or more counterparts and by transmission of
a
facsimile or digital image containing the signature of an authorized person,
each of which shall be deemed and accepted as an original, and all of which
together shall constitute a single instrument.
*
* * * *
* * * * * *
(signature
page follows)
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In
Witness Whereof, this Agreement has been executed and delivered by the parties
hereto as of the dates set forth below.
| VERUTEK TECHNOLOGIES, INC. | EMPLOYEE | ||
| By: | |||
|
|
(signature)
|
||
| Name: | Name: Xxxxxx Xxxx | ||
|
|
|||
| Title: | |||
|
|
|||
| Date: ____/____/____ | Date: ____/____/____ |
Caution
to Employee: THIS
AGREEMENT AFFECTS IMPORTANT RIGHTS INCLUDING, WITHOUT LIMITATION, RIGHTS TO
INVENTIONS AND OTHER INTELLECTUAL PROPERTY THAT EMPLOYEE MAY DEVELOP DURING
HIS
OR HER EMPLOYMENT. DO NOT SIGN IT UNLESS YOU HAVE READ IT CAREFULLY AND ARE
SATISFIED THAT YOU UNDERSTAND IT COMPLETELY.
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Schedule
7H
Excluded
Inventions
Employee
describes below, or on additional pages if necessary, in specific terms, the
following inventions, improvements, discoveries, software or writings which
Employee represents are presently in existence and have not been derived from
any Developments, Corporation Materials, or Confidential
Information:
None.
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