EXHIBIT 10.5
EMPLOYMENT AGREEMENT
Agreement dated as of August 28, 2002 between EasyLink Services
Corporation (hereinafter "Company") and Xxxx XxxXxxx (hereinafter the
"Employee").
I. EMPLOYMENT: Effective on the date hereof, Company hereby agrees to employ
Employee upon the terms and conditions of the employment letter (incorporated
herewith), and Employee accepts employment by Company upon the terms and
conditions of the employment letter and upon the terms and conditions set forth
in this Employment Agreement (hereinafter the "Agreement").
A. DUTIES AND POSITION: Company hires Employee in the capacity of Vice
President, Technology. Employee's duties may be reasonably changed,
increased or reduced at Company's discretion.
B. EMPLOYMENT AT WILL: Employment of Employee by Company is "at will".
Employee may resign upon written notice provided to Company and can be
discharged without cause upon written notice received from Company.
C. FULL TIME EFFORTS: Employee will devote full time and attention to
the business of Company, and, during his or her employment, will not
engage in any other business activity, regardless of whether such
activity is pursued for profit, gain, or other pecuniary advantage,
unless Employee receives prior written approval from Company. However,
Employee is not prohibited from making personal investments in any
other businesses, so long as those investments do not require Employee
to participate in the operation of the companies in which he or she
invests.
D. COMPANY RULES AND REGULATIONS: Employee agrees to review and abide
by all Company rules and regulations set forth in the Company Employee
Handbook, a copy of which shall be made available to Employee.
II. DEFINITIONS: "Messaging Business" means any business based on or with a
focus on value-added email services, email hosting or outsourcing services, or
email and URL services, redirect services, or that derives revenues from the
sale of any of the foregoing. Value-added email services include but are not
limited to email virus control, content management, applet containment, secure
messaging, unified messaging technologies, email redirection enhancements, email
to fax/pager technologies and email redirection enhancements. "Broker/Agent
Business" means any business that sells Internet assets, including secondary
domain name rights, and IP address rights. "New TLD Business" means a business
that registers new top level domain names.
III. CONFIDENTIALITY: Company and its Affiliates hold certain trade, business,
and financial secrets in connection with the business. The nature of services
provided by Company or its Affiliates requires information to be handled in a
private, confidential manner. Throughout Employee's employment there may be
disclosed to Employee certain trade secrets, confidential information and
proprietary data.
A. EMPLOYEE CONFIDENTIALITY AGREEMENT: Employee agrees that all
knowledge and information Employee gains from the trade secrets,
confidential information and proprietary information, which are
revealed to Employee shall for all time be regarded as strictly
confidential, are, and shall remain the sole and confidential property
of Company or its Affiliates, as applicable. Company shall be entitled
to restrain Employee from disclosing any trade secret or other
confidential information, or from rendering any services to any entity
to whom this information has been or is threatened to be disclosed. The
right to an injunction is not exclusive, and Company may pursue any
other remedies it has against Employee for a breach or threatened
breach of this condition, including the recovery of damages. Employee
will only reveal or disclose the trade secrets to another person, firm,
corporation, company or entity if Company instructs Employee to do so
in writing. This secrecy protection will continue even after Employee's
dismissal by Company. Employee acknowledges that if employee reveals
the trade secrets to unauthorized persons Employee may be penalized and
sued for injunctive relief and money damages as well as face possible
criminal charges by Company.
B. CONFIDENTIALITY AFTER TERMINATION OF EMPLOYMENT: Employee agrees
that during and after termination of employment, Employee shall not use
for Employee or others, or disclose or divulge to others, any trade
secrets, confidential information, or any other data of Company or any
of its Affiliates in violation of this Agreement. Upon terminating
employment with Company:
1. Employee shall return to Company all documents and property
pertaining to Company or its Affiliates, including but not
limited to: drawings, blueprints, records, reports, manuals,
correspondence, customer lists, computer programs, inventions,
and all other materials and all copies thereof relating in any
way to the business of Company or any of its Affiliates, or in
any way obtained by Employee during employment. Employee
further agrees that Employee shall not retain any copies or
reproductions of the foregoing.
2. Company may notify any future or prospective employer of
this Agreement.
C. DEFINITIONS: The definition of trade secrets, confidential
information and proprietary information includes but is not limited to:
1. Technical Information: Methods, processes, formulae,
compositions, systems, techniques, inventions, machines,
computer programs and research projects, unpatented
inventions, designs, know-how, trade secrets, technical
information and data, specifications, blueprints,
transparencies, test data, and additions, modifications, and
improvements thereon which are revealed to Employee.
2. General Business Information: Customer lists, pricing data,
sources of supply, marketing, production, or merchandising
systems or plans, documents, financial statements, quotes,
correspondence.
3. Industry Specific Information: Information regarding the
Messaging Business, the Broker/Agent Business, the New TLD
Business or Company's business methods. Company's user payment
data, user demographic data, and user account information.
Company's business policies, procedures, techniques, trade
secrets, patents, processes, formulas, research, intellectual
property or other knowledge developed by Company.
4. Other Materials: Information, including without limitation
data processing reports, customer sales analyses, invoices,
price lists or information, samples, any other materials, data
or software of any kind furnished to Employee by Company or
developed by Employee on behalf of Company or for Company's
use or otherwise in connection with Employee's employment
hereunder, or any other data that could be used by third
parties to the disadvantage of Company.
IV. INTELLECTUAL PROPERTY
A. AGREEMENT ON INVENTIONS AND PATENTS: Employee agrees that Employee
shall promptly provide Company a complete record of any and all
inventions and improvements, whether patentable or not, which Employee,
solely or jointly, may conceive, make, or first disclose during said
employment. Employee agrees to the following:
1. Employee hereby grants, assigns and delivers to Company, or
its nominee, Employee's entire right, title, and interest in
and to all inventions and improvements coming within the scope
of Section IV, paragraph A that relate in any way to the
actual or anticipated business or activities of Company, or
its Affiliates, or that are suggested by or result from any
task or work for or on behalf of Company or its Affiliates,
together with any and all domestic and foreign patent rights
in such inventions and improvements. To assist Company or its
nominee in securing patents thereto, Employee agrees promptly
to do all lawful and reasonable things both during and after
employment, without additional compensation, but at Company's
expense.
2. Employee agrees that, upon accepting employment with any
organization in competition with Company or its Affiliates
during a one year period following termination of employment
Employee shall notify Company in writing within thirty days of
the name and address of such new employer.
3. Employee agrees to give Company timely written notice of
any prior employment Agreements or patent rights that may
conflict with the interests of Company or its Affiliates.
B. AGREEMENT ON PROPRIETARY RIGHTS: Employee acknowledges that Employee
may have Company and industry related ideas and suggestions, which
Company may consider for commercial exploitation. Employee understands
that Company cannot accept such suggestions in confidence. Employee
therefore agrees to submit any suggestions to the Company under the
following conditions:
1. Company's review of Employee's suggestions is made only
upon Employee's request, and Company accepts no responsibility
for holding any submitted information in confidence.
2. No obligation of any kind is assumed nor may be implied
against Company unless or until Employee has entered into a
formal written contract with Company pertaining to Employee's
submissions. In addition, any obligation shall be only such as
is expressed in writing.
3. Neither Company nor any of its Affiliates shall have any
rights under any patents Employee now has nor may later obtain
for Employee's submissions covered by this Agreement, but, in
consideration of Company examining and considering same,
Employee hereby releases the Company from any liability in
connection with Employee's submissions or from liability
because of Company's use of Employee's submissions or of any
portion thereof, except such liability as may accrue under
valid patents now or hereafter issued.
4. Subject to these conditions, Employee certifies that no
prior disclosure to Company or any of its Affiliates regarding
these submissions has been made and that the entire disclosure
now made by Employee to Company is included with this
Agreement and submitted for retention by Company. If, at any
time, Employee corresponds with or discuss submissions with an
officer, employee, agent or representative of Company and, in
the course of such correspondence or discussion, makes any
additional disclosures regarding such submissions, Employee
shall, upon request, furnish Company an illustration or a
complete description, or both, of such additional disclosure,
so that it can be made a part of the permanent record of
Company.
V. NON-COMPETITION: Employee hereby acknowledges that Company shall or may in
reliance of this Agreement provide Employee access to trade secrets, customers
and accounts, and other confidential or propriety information, and that this
Agreement is reasonably necessary to protect Company.
A. NON-COMPETITION AGREEMENT: For good consideration and as an
inducement for Company to employ Employee, Employee hereby agrees not
to directly or indirectly compete with the business of Company and its
Affiliates during the period of employment and for a period of one year
thereafter following termination of employment and notwithstanding the
cause or reason for termination, unless Company and its Affiliates
cease operations (it being understood that the liquidation or merger or
consolidation of the Company or such Affiliates with or into, or the
transfer of all or substantially all of the business and assets to,
another entity that continues the business of the Company shall not be
deemed to be ceasing operations).
1. Exceptions: Any exceptions to this policy must be with
Company's and such Affiliate's written prior consent. Employee
acknowledges that money damages may not be sufficient remedy
for any breach of this Agreement and agrees that Company and
its Affiliates will be entitled to seek specific performance
and injunctive or other equitable relief for any such breach.
2. Definitions: The term "not compete" shall mean that:
a. Employee shall not, on Employee's behalf or on
behalf of any other party, solicit or seek the
business of any customer or account of Company
existing during the term of employment and wherein
said solicitation involves a product and/or service
substantially similar to or competitive with any
product and/or service of Company or its Affiliates
offered or under development during Employee's
employment with Company or its Affiliates.
b. Employee shall not directly or indirectly own,
operate, consult to or be employed by any firm in a
business substantially similar to or competitive with
the present business of the Company or such business
activity in which the Company may engage during the
term of employment.
c. Employee shall not to be involved, directly or
indirectly, in the Messaging Business, the
Broker/Agent Business, the New TLD business, and
other businesses in which Company or any of its
Affiliates is engaged or which are under development
by Company or any of its Affiliates during Employee's
employment with Company or any of its Affiliates and
will not be involved, directly or indirectly, nor
have a financial interest in, the Messaging Business,
the Broker/Agent Business, the New TLD Business or
any other business of Company or any of its
Affiliates.
d. Employee shall not directly or indirectly solicit
Company's or any of its Affiliates' customers,
employees, staff, vendors, subcontractors, or
prospects with services or products of the nature of
those being offered or under development by Company
or any of its Affiliates during the term of
Employee's employment with Company or any of its
Affiliates.
VI. CONFLICT OF INTEREST: Employee acknowledges that neither Employee, nor any
other business to which Employee may be associated, nor, to the best of
Employee's knowledge, any member of Employee's immediate family, has any
conflict between Employee's personal affairs or interests and the proper
performance of Employee's responsibilities for Company that would constitute a
conflict of interest with Company. Furthermore, Employee declares that during
employment, Employee shall continue to maintain avoid any conflict with
Company's interests.
VII. DOMAIN NAME REGISTRATION: Employee agrees that while working for Company,
Employee will give Company the right of first refusal on any Domain names that
Employee intends on registering or purchasing. To the extent that Company does
not act to register the Domain name then Employee can register the Domain name
after seven days from notifying Company of Employee's intent. Employee cannot
use these Domain names for any business while working for Company and shall in
any event remain bound by the non-compete restrictions.
VIII. GENERAL CONTRACT TERMS
A. BREACH: If Employee breaches this covenant, Company shall have the
right, in addition to all other rights available hereunder and by law,
to enjoin Employee from continuing such breach. Employee affirms having
the opportunity to fully discuss and negotiate this covenant and
acknowledges understanding and acceptance. If any part of this covenant
is declared invalid, then Employee agrees to be bound by a covenant as
near to the original as lawfully possible. This paragraph shall survive
the term and termination of employment. Employee shall further be
liable for all costs of enforcement.
B. LIMITED EFFECT OF WAIVER OF BREACH BY COMPANY. If Company waives a
breach of any provision of this Agreement by Employee, that waiver will
not operate or be construed as a waiver of any succeeding breach by
Employee. No waiver of a right by Company constitutes a waiver of any
other right of Company, and temporary waiver by Company does not
constitute a permanent waiver or any additional temporary waiver.
C. EFFECT OF PRIOR AGREEMENT: This Agreement supersedes any prior
agreement between Company or any predecessor of Company and Employee,
except that this Agreement shall not affect or operate to reduce any
benefit or compensation inuring to Employee of a kind elsewhere
provided and not expressly provided in this Agreement.
D. SETTLEMENT BY ARBITRATION: Any claim or controversy that arises out
of or relates to this Agreement, or the breach thereof, will be settled
by arbitration in the office nearest the Company in accordance with the
prevailing rules of the American Arbitration Association. Judgment upon
the award rendered may be entered in any court possessing jurisdiction
of arbitration awards.
E. SEVERABILITY: If for any reason any portion of this Agreement and
the covenants herein are declared invalid, this Agreement and the
covenants herein shall continue in effect as if the invalid portion had
never been part hereof, and the other portions of this Agreement and
the covenants herein will remain in effect, insofar as is consistent
with the governing laws.
F. INVALIDITY: If this Agreement is held invalid or cannot be enforced,
then to the full extent permitted by the governing laws any prior
agreement between Company (or any predecessor thereof) and Employee
will be deemed reinstated as if this Agreement had not been executed.
G. ASSUMPTION OF AGREEMENT: The rights and obligations under this
Agreement will inure to the benefit and be binding upon the parties,
their successors, heirs, assigns and personal representatives.
H. ORAL MODIFICATIONS NOT BINDING: This instrument is the entire
agreement. Oral changes will have no effect. This Agreement and the
covenants herein may be altered only by a written agreement signed by
the party against whom enforcement of any waiver, change, modification,
extension, or discharge is sought.
I. GOVERNING LAW: This Agreement and the covenants herein shall be
governed and interpreted under the laws of the State of New York.
J. FULL DISCLOSURE: Company and Employee know of no restrictions on
their ability to complete this Agreement
In Witness Whereof, the parties have executed this Agreement as of the date
first written above.
By: /s/Xxxxxx Xxxxxxx By: /s/Xxxx XxxXxxx
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Name: Xxxxxx Xxxxxxx Name: Xxxx X. XxxXxxx
Manager of Human Resources
EasyLink Services Corporation
