EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
effective as of the 22nd day of September, 2000, by and between XXXXX &
XXXXXXXXXX COMPUTER CORPORATION, a Utah corporation (the "Company") and XXXXXXXX
X. XXXXXX (the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive has been providing services to the Company in an
executive capacity and desires to continue to provide such services;
WHEREAS, the Company desires to have the benefit of the Executive's
efforts and services; and
WHEREAS, the Company has determined that it is appropriate and in the
best interests of the Company to provide to the Executive protection in the
event of certain terminations of the Executive's employment relationship with
the Company in accordance with the terms and conditions contained herein and the
Executive desires to have such protection.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the Company and the Executive
hereby mutually covenant and agree as follows:
1. DEFINITIONS.
Whenever used in this Agreement, the following terms shall have the
meanings set forth below:
(a) "Accrued Benefits" shall mean the amount payable not later
than ten (10) days following an applicable Termination Date and which
shall be equal to the sum of the following amounts:
(i) All salary earned or accrued through the
Termination Date;
(ii) Reimbursement for any and all monies advanced in
connection with the Executive's employment for reasonable and
necessary expenses incurred by the Executive through the
Termination Date;
(iii) Any and all other cash benefits previously
earned through the Termination Date and deferred at the
election of the Executive or pursuant to any deferred
compensation plans then in effect;
(iv) The full amount of any stated bonus payable to
the Executive in accordance with Sections 6(b)-(c) herein with
respect to the year in which termination occurs; and
(v) All other payments and benefits to which the
Executive may be entitled under the terms of any benefit plan
of the Company.
(b) "Act" shall mean the Securities Exchange Act of 1934;
(c) "Affiliate" shall have the same meaning as given to that
term in Rule 12b-2 of Regulation 12B promulgated under the Act;
(d) "Base Period Income" shall be an amount equal to the
Executive's "annualized includable compensation" for the "base period"
as defined in Sections 280G(d)(1) and (2) of the Code and the
regulations adopted thereunder;
(e) "Beneficial Owner" shall have the same meaning as given to
that term in Rule 13d-3 of the General Rules and Regulations of the
Act, provided that any pledgee of Company voting securities shall not
be deemed to be the Beneficial Owner thereof prior to its disposition
of, or acquisition of voting rights with respect to, such securities;
(f) "Board" shall mean the Board of Directors of the Company;
(g) "Cause" shall mean any of the following:
(i) The engaging by the Executive in fraudulent
conduct, as evidenced by a determination in a binding and
final judgment, order or decree of a court or administrative
agency of competent jurisdiction, in effect after exhaustion
or lapse of all rights of appeal, in an action, suit or
proceeding, whether civil, criminal, administrative or
investigative, which the Board determines, in its sole
discretion, has a significant adverse impact on the Company in
the conduct of the Company's business;
(ii) Conviction of a felony, as evidenced by a
binding and final judgment, order or decree of a court of
competent jurisdiction, in effect after exhaustion or lapse of
all rights of appeal, which the Board determines, in its sole
discretion, has a significant adverse impact on the Company in
the conduct of the Company's business;
(iii) Neglect or refusal by the Executive to perform
the Executive's duties or responsibilities (unless
significantly changed without the Executive's consent); or
(iv) A significant violation by the Executive of the
Company's established policies and procedures;
Notwithstanding the foregoing, Cause shall not exist under Sections
1(g)(iii) and (iv) herein unless the Company furnishes written notice
to the Executive of the specific offending conduct and the Executive
fails to correct such offending conduct within the thirty (30) day
period commencing on the receipt of such notice.
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(h) "Change of Control" shall mean a change in ownership or
managerial control of the stock, assets or business of the Company
resulting from one or more of the following circumstances:
(i) A change of control of the Company, of a nature
that would be required to be reported in response to Item 6(e)
of Schedule 14A of Regulation 14A promulgated under the Act,
or any successor regulation of similar import, regardless of
whether the Company is subject to such reporting requirement;
(ii) A change in ownership of the Company through a
transaction or series of transactions, such that any Person or
Persons (other than any current officer of the Company or
member of the Board) is (are) or become(s), in the aggregate,
the Beneficial Owner(s), directly or indirectly, of securities
of the Company representing thirty percent (30%) or more of
the Company's then outstanding securities;
(iii) Any consolidation or merger of the Company in
which the Company is not the continuing or surviving
corporation or pursuant to which shares of the common stock of
the Company would be converted into cash (other than cash
attributable to dissenters' rights), securities or other
property provided by a Person or Persons other than the
Company, other than a consolidation or merger of the Company
in which the holders of the common stock of the Company
immediately prior to the consolidation or merger have
approximately the same proportionate ownership of common stock
of the surviving corporation immediately after the
consolidation or merger;
(iv) The shareholders of the Company approve a sale,
transfer, liquidation or other disposition of all or
substantially all of the assets of the Company to a Person or
Persons;
(v) During any period of two (2) consecutive years,
individuals who, at the beginning of such period, constituted
the Board of Directors of the Company cease, for any reason,
to constitute at least a majority thereof, unless the election
or nomination for election of each new director was approved
by the vote of at least two-thirds (2/3) of the directors then
still in office who were directors at the beginning of the
period;
(vi) The filing of a proceeding under Chapter 7 of
the Federal Bankruptcy Code (or any successor or other statute
of similar import) for liquidation with respect to the
Company; or
(vii) The filing of a proceeding under Chapter 11 of
the Federal Bankruptcy Code (or any successor or other statute
of similar import) for reorganization with respect to the
Company if in connection with any such proceeding, this
Agreement is rejected, or a plan of reorganization is approved
an element of which plan entails the liquidation of all or
substantially all the assets of the Company.
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A "Change of Control" shall be deemed to occur on the actual date on
which any of the foregoing circumstances shall occur; provided,
however, that in connection with a "Change of Control" specified in
Section 1(h)(vii), a "Change of Control" shall be deemed to occur on
the date of the filing of the relevant proceeding under Chapter 11 of
the Federal Bankruptcy Code (or any successor or other statute of
similar import). Notwithstanding the foregoing, a "Change of Control"
shall not include any transaction that constitutes a "Rule 13e-3
transaction" under Rule 13e-3 of the Act or an "issuer tender offer"
under Rule 13e-4 of the Act.
(i) "Change of Control Period" shall mean the period
commencing on the date a Change of Control occurs and ending on the
second anniversary of such Change of Control;
(j) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time;
(k) "Disability" shall mean a physical or mental condition
whereby the Executive is unable to perform on a full-time basis the
customary duties of the Executive under this Agreement;
(l) "Federal Short Term-Rate" shall mean the rate defined in
Section 1274(d)(1)(C)(i) of the Code;
(m) "Good Reason" shall mean:
(i) The required relocation of the Executive, without
the Executive's consent, to an employment location which is
more than seventy-five (75) miles from the Executive's
employment location on the day preceding the date of this
Agreement;
(ii) The removal of the Executive from or any failure
to reelect the Executive to any of the positions held by the
Executive as of the date of this Agreement or any other
positions to which the Executive shall thereafter be elected
or assigned except in the event that such removal or failure
to reelect relates to the termination by the Company of the
Executive's employment for Cause or by reason of death,
Disability or voluntary retirement;
(iii) A significant adverse change, without the
Executive's written consent, in the nature or scope of the
Executive's authority, powers, functions, duties or
responsibilities, or a material reduction in the level of
support services, staff, secretarial and other assistance,
office space and accoutrements available to a level below that
which was provided to the Executive on the day preceding the
date of this Agreement and that which is necessary to perform
any additional duties assigned to the Executive following the
date of this Agreement, which change or reduction is not
generally effective for all executives employed by the Company
(or its successor) in the Executive's class or category; or
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(iv) Breach or violation of any material provision of this
Agreement by the Company;
(n) "Gross Income" shall mean the Executive's current calendar
year targeted compensation (base salary plus cash bonus), plus any
other compensation payable to the Executive by the Company for the same
period, whether taxable or non-taxable;
(o) "Notice of Termination" shall mean the notice described in
Section 14 herein;
(p) "Person" shall mean any individual, partnership, joint
venture, association, trust, corporation or other entity, other than an
employee benefit plan of the Company or an entity organized, appointed
or established pursuant to the terms of any such benefit plan;
(q) "Termination Date" shall mean, except as otherwise
provided in Section 14 herein,
(i) The Executive's date of death;
(ii) Thirty (30) days after the delivery of the Notice of
Termination terminating the Executive's employment on account
of Disability pursuant to Section 9 herein, unless the
Executive returns on a full-time basis to the performance of
his or her duties prior to the expiration of such period;
(iii) Thirty (30) days after the delivery of the Notice of
Termination if the Executive's employment is terminated by the
Executive voluntarily; or
(iv) Thirty (30) days after the delivery of the Notice of
Termination if the Executive's employment is terminated by the
Company for any reason other than death or Disability;
(r) "Termination Payment" shall mean the payment described in
Section 13 herein;
(s) "Total Payments" shall mean the sum of the Termination
Payment and any other "payments in the nature of compensation" (as
defined in Section 280G of the Code and the regulations adopted
thereunder) to or for the benefit of the Executive, the receipt of
which is contingent on a Change of Control and to which Section 280G of
the Code applies.
2. EMPLOYMENT.
The Company hereby agrees to employ the Executive and the Executive
hereby agrees to serve the Company, on the terms and conditions set forth
herein.
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3. TERM.
The employment of the Executive by the Company pursuant to the
provisions of this Agreement shall commence on the date hereof and end on
December 31, 2001, unless further extended or sooner terminated as hereinafter
provided. On December 31, 2001, and on the last day of December each year
thereafter, the term of the Executive's employment shall, unless sooner
terminated as hereinafter provided, be automatically extended for an additional
one year period from the date thereof unless, at least six (6) months before
such December 31, the Company shall have delivered to the Executive or the
Executive shall have delivered to the Company written notice that the term of
the Executive's employment hereunder will not be extended beyond its existing
duration.
4. POSITIONS AND DUTIES.
The Executive shall serve as Vice President and Treasurer of the
Company and in such additional capacities as set forth in Section 7 herein. In
connection with the foregoing positions, the Executive shall have such duties,
responsibilities and authority as may from time to time be assigned to the
Executive by the Board. The Executive shall devote substantially all the
Executive's working time and efforts to the business and affairs of the Company.
5. PLACE OF PERFORMANCE.
In connection with the Executive's employment by the Company, the
Executive shall be based at the principal executive offices of the Company in
Salt Lake City, Utah except for required travel on Company business.
6. COMPENSATION AND RELATED MATTERS.
(a) Salary. The Company shall pay to the Executive his
annualized base salary (as in effect on the effective date of this
Agreement and subject to adjustment as provided herein) in equal
installments (as nearly as practicable), in accordance with the
Company's standard payroll policy (as in effect from time to time),
which currently provides for payments to be made every two weeks, in
arrears. Such annualized base salary may be increased from time to time
in accordance with normal business practices of the Company. The
annualized base salary of the Executive shall not be decreased below
its then existing amount during the term of this Agreement.
(b) ESIP. The Executive shall be entitled to participate in
the Xxxxx & Xxxxxxxxxx Incentive Program.
(c) SERP. The Executive shall be entitled to participate in
the Company's Supplemental Executive Retirement Plan.
(d) Expenses. The Executive shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by the
Executive in performing services hereunder, including all expenses for
travel and living expenses while away from home on business or at the
request of and in the service of the Company, provided that such
expenses are incurred and accounted for in accordance with the policies
and procedures established from time to time by the Company.
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(e) Other Benefits. The Company shall provide Executive with
all other benefits normally provided to an employee of the Company
similarly situated to Executive, including being added as a named
officer on the Company's existing directors' and officers' liability
insurance policy.
(f) Vacations. The Executive shall be entitled to the number
of vacation days in each calendar year, and to compensation in respect
of earned but unused vacation days, determined in accordance with the
Company's vacation plan, but in no event less than fifteen (15) days.
The Executive shall also be entitled to all paid holidays given by the
Company to its executives.
(g) Services Furnished. The Company shall furnish the
Executive with office space, and such other facilities and services as
shall be suitable to the Executive's position and adequate for the
performance of the Executive's duties as set forth in Section 4 hereof.
7. OFFICES.
The Executive agrees to serve without additional compensation, if
elected or appointed thereto, in one or more executive offices of the Company,
or any affiliate or subsidiary of the Company, or as a member of the board of
directors of any subsidiary or affiliate of the Company; provided, however, that
the Executive is indemnified for serving in any and all such capacities on a
basis no less favorable than is currently provided in the Company's bylaws, or
otherwise.
8. TERMINATION AS A RESULT OF DEATH.
If the Executive shall die during the term of this Agreement, the
Executive's employment shall terminate on the Executive's date of death and the
Executive's surviving spouse, or the Executive's estate if the Executive dies
without a surviving spouse, shall be entitled to the Executive's Accrued
Benefits as of the Termination Date and any applicable Termination Payment.
9. TERMINATION FOR DISABILITY.
If, as a result of the Executive's Disability, the Executive shall have
been unable to perform the Executive's duties hereunder on a full-time basis for
four (4) consecutive months and within thirty (30) days after the Company
provides the Executive with a Termination Notice, the Executive shall not have
returned to the performance of the Executive's duties on a full-time basis, the
Company may terminate the Executive's employment, subject to Section 14 herein.
During the term of the Executive's Disability prior to termination, the
Executive shall continue to receive all salary and benefits payable under
Section 6 herein, including participation in all employee benefit plans,
programs and arrangements in which the Executive was entitled to participate
immediately prior to the Disability; provided, however, that the Executive's
continued participation is permitted under the terms and provisions of such
plans, programs and arrangements. In the event that the Executive's
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participation in any such plan, program or arrangement is barred as the result
of such Disability, the Executive shall be entitled to receive an amount equal
to the contributions, payments, credits or allocations which would have been
paid by the Company to the Executive, to the Executive's account or on the
Executive's behalf under such plans, programs and arrangements. In the event the
Executive's employment is terminated on account of the Executive's Disability in
accordance with this Section 9, the Executive shall receive the Executive's
Accrued Benefits as of the Termination Date and shall remain eligible for all
benefits provided by any long-term disability programs of the Company in effect
at the time of such termination. The Executive shall also be entitled to the
Termination Payment described in Section 13(a).
10. TERMINATION FOR CAUSE.
If the Executive's employment with the Company is terminated by the
Company for Cause, subject to the procedures set forth in Section 14 herein, the
Executive shall be entitled to receive the Executive's Accrued Benefits as of
the Termination Date. The Executive shall not be entitled to receipt of any
Termination Payment.
11. OTHER TERMINATION BY COMPANY.
If the Executive's employment with the Company is terminated by the
Company other than by reason of death, Disability or Cause, or as described in
paragraph 13(g) below, subject to the procedures set forth in Section 14 herein,
the Executive (or in the event of the Executive's death following the
Termination Date, the Executive's surviving spouse or the Executive's estate if
the Executive dies without a surviving spouse) shall receive the applicable
Termination Payment. The Executive shall not, in connection with any
consideration receivable in accordance with this Section 11, be required to
mitigate the amount of such consideration by securing other employment or
otherwise and such consideration shall not be reduced by reason of the Executive
securing other employment or for any other reason.
12. VOLUNTARY TERMINATION BY EXECUTIVE.
Provided that the Executive furnishes thirty (30) days prior written
notice to the Company, the Executive shall have the right to voluntarily
terminate this Agreement at any time. If the Executive's voluntary termination
is without Good Reason, the Executive shall receive the Executive's Accrued
Benefits as of the Termination Date and shall not be entitled to any Termination
Payment. If the Executive's voluntary termination (other than a termination
described in paragraph 13(g) below) is for Good Reason, the Executive (or in the
event of the Executive's death following the Termination Date, the Executive's
surviving spouse or the Executive's estate if the Executive dies without a
surviving spouse) shall receive the applicable Termination Payment. The
Executive shall not, in connection with any consideration receivable in
accordance with this Section 12, be required to mitigate the amount of such
consideration by securing other employment or otherwise and such consideration
shall not be reduced by reason of the Executive securing other employment or for
any other reason.
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13. TERMINATION PAYMENT.
(a) If the Executive's employment is terminated as a result of
death or disability, the lump sum Termination Payment payable to the
Executive shall be equal to the Executive's Gross Income. The Company
will pay the full medical, dental and vision premiums for continuation
coverage under COBRA for the Executive and dependents who qualify for
continuation coverage under COBRA for one year following the
Termination Date.
(b) If the Executive's employment is terminated by the
Executive for Good Reason or by the Company for any reason other than
death, disability or Cause, the Termination Payment payable to the
Executive by the Company or an affiliate of the Company shall be equal
to the Executive's Gross Income. The Company will pay the full medical,
dental and vision premiums for continuation coverage under COBRA for
the Executive and dependents who qualify for continuation coverage
under COBRA for one year following the Termination Date.
(c) If, during a Change of Control Period, the Executive's
employment is terminated by the Executive for Good Reason or by the
Company for any reason other than death, Disability, or Cause, the
Termination Payment payable to the Executive by the Company or an
affiliate of the Company shall be one and one-half (1.5) times the
Executive's Gross Income. The Company will pay the full medical, dental
and vision premiums for continuation coverage under COBRA for the
Executive and dependents who qualify for continuation coverage under
COBRA for one and one-half (1.5) years following the Termination Date.
(d) It is the intention of the Company and the Executive that
no portion of the Termination Payment and any other "payments in the
nature of compensation" (as defined in Section 280G of the Code and the
regulations adopted thereunder) to or for the benefit of the Executive
under this Agreement, or under any other agreement, plan or
arrangement, be deemed to be an "excess parachute payment" as defined
in Section 280G of the Code. It is agreed that the present value of the
Total Payments shall not exceed an amount equal to two and ninety-nine
hundredths (2.99) times the Executive's Base Period Income, which is
the maximum amount which the Executive may receive without becoming
subject to the tax imposed by Section 4999 of the Code or which the
Company may pay without loss of deduction under Section 280G(a) of the
Code. Present value for purposes of this Agreement shall be calculated
in accordance with the regulations issued under Section 280G of the
Code. Within sixty (60) days following delivery of the Notice of
Termination or notice by the Company to the Executive of its belief
that there is a payment or benefit due the Executive which will result
in an excess parachute payment as defined in Section 280G of the Code,
the Executive and the Company shall, at the Company's expense, obtain
such opinions as more fully described hereafter, which need not be
unqualified, of legal counsel and certified public accountants or a
firm of recognized executive compensation consultants. The Executive
shall select said legal counsel, certified public accountants and
executive compensation consultants; provided, however, that if the
Company does not accept one (1) or more of the parties selected by the
Executive, the Company shall provide the Executive with the names of
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such legal counsel, certified public accountants and/or executive
compensation consultants as the Company may select; provided, further,
however, that if the Executive does not accept the party or parties
selected by the Company, the legal counsel, certified public
accountants and/or executive compensation consultants selected by the
Executive and the Company, respectively, shall select the legal
counsel, certified public accountants and/or executive compensation
consultants, whichever is applicable, who shall provide the opinions
required by this Section 13(e). The opinions required hereunder shall
set forth (a) the amount of the Base Period Income of the Executive,
(b) the present value of Total Payments and (c) the amount and present
value of any excess parachute payments. In the event that such opinions
determine that there would be an excess parachute payment, the
Termination Payment or any other payment determined by such counsel to
be includable in Total Payments shall be reduced or eliminated as
specified by the Executive in writing delivered to the Company within
thirty (30) days of his or her receipt of such opinions or, if the
Executive fails to so notify the Company, then as the Company shall
reasonably determine, so that under the bases of calculation set forth
in such opinions there will be no excess parachute payment. The
provisions of this Section 13(e), including the calculations, notices
and opinions provided for herein shall be based upon the conclusive
presumption that the compensation and other benefits, including but not
limited to the Accrued Benefits, earned on or after the date of Change
of Control by the Executive pursuant to the Company's compensation
programs if such payments would have been made in the future in any
event, even though the timing of such payment is triggered by the
Change of Control, are reasonable compensation for services rendered
prior to the Change of Control; provided, however, that in the event
legal counsel so requests in connection with the opinion required by
this Section 13(e), a firm of recognized executive compensation
consultants, selected by the Executive and the Company pursuant to the
procedures set forth above, shall provide an opinion, upon which such
legal counsel may rely, as to the reasonableness of any item of
compensation as reasonable compensation for services rendered prior to
the Change of Control by the Executive. In the event that the
provisions of Sections 280G and 4999 of the Code are repealed without
succession, this Section 13(e) shall be of no further force or effect.
(f) The Termination Payment shall be payable in a lump sum not
later than ten (10) days following the Executive's Termination Date.
Such lump sum payment shall not be reduced by any present value or
similar factor. Further, the Executive shall not be required to
mitigate the amount of such payment by securing other employment or
otherwise and such payment shall not be reduced by reason of the
Executive securing other employment or for any other reason.
(g) Notwithstanding anything to the contrary herein, in no
event will a termination of Executive's employment with the Company be
deemed to trigger a right to receive a Termination Payment if the
termination is effected by the mutual agreement of the Company and
Executive to accommodate a reassignment of Executive to an entity
created or acquired by the Company, or to which the Company has
contributed rights to technology, assets or business plans, if at the
time of such termination the Company owns or is acquiring a minimum of
a 19% equity interest in such entity. In the event of any such
termination, the Executive shall only be entitled to receive the
Executive's Accrued Benefits as of the Termination Date.
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14. TERMINATION NOTICE AND PROCEDURE.
Any termination by the Company or the Executive of the Executive's
employment during the Employment Period shall be communicated by written Notice
of Termination to the Executive, if such Notice of Termination is delivered by
the Company, and to the Company, if such Notice of Termination is delivered by
the Executive, all in accordance with the following procedures:
(a) The Notice of Termination shall indicate the specific
termination provision in this Agreement relied upon and shall set forth
in reasonable detail the facts and circumstances alleged to provide a
basis for termination;
(b) Any Notice of Termination by the Company shall be approved
by a resolution duly adopted by a majority of the directors of the
Company then in office;
(c) If the Executive shall in good faith furnish a Notice of
Termination for Good Reason and the Company notifies the Executive that
a dispute exists concerning the termination, within the fifteen (15)
day period following the Company's receipt of such notice, the
Executive shall continue the Executive's employment during such
dispute. If it is thereafter determined that (i) Good Reason did exist,
the Executive's Termination Date shall be the earlier of (A) the date
on which the dispute is finally determined, either by mutual written
agreement of the parties or pursuant to Section 19, (B) the date of the
Executive's death or (C) one day prior to the second (2nd) anniversary
of a Change of Control, and the Executive's Termination Payment, if
applicable, shall reflect events occurring after the Executive
delivered the Executive's Notice of Termination; or (ii) Good Reason
did not exist, the employment of the Executive shall continue after
such determination as if the Executive had not delivered the Notice of
Termination asserting Good Reason; and
(d) If the Executive gives notice to terminate his or her
employment for Good Reason and a dispute arises as to the validity of
such dispute, and the Executive does not continue his employment during
such dispute, and it is finally determined that the reason for
termination set forth in such Notice of Termination did not exist, if
such notice was delivered by the Executive, the Executive shall be
deemed to have voluntarily terminated the Executive's employment other
than for Good Reason.
15. NONDISCLOSURE OF PROPRIETARY INFORMATION.
Recognizing that the Company is presently engaged, and may hereafter
continue to be engaged, in the research and development of processes, the
manufacturing of products or performance of services, which involve experimental
and inventive work and that the success of its business depends upon the
protection of the processes, products and services by patent, copyright or by
secrecy and that the Executive has had, or during the course of his engagement
may have, access to Proprietary Information, as hereinafter defined, of the
Company or other information and data of a secret or proprietary nature of the
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Company which the Company wishes to keep confidential and the Executive has
furnished, or during the course of his engagement may furnish, such information
to the Company, the Executive agrees that:
(a) "Proprietary Information" shall mean any and all methods,
inventions, improvements or discoveries, whether or not patentable or
copyrightable, and any other information of a similar nature related to
the business of the Company disclosed to the Executive or otherwise
made known to him as a consequence of or through his engagement by the
Company (including information originated by the Executive) in any
technological area previously developed by the Company or developed,
engaged in, or researched, by the Company during the term of the
Executive's engagement, including, but not limited to, trade secrets,
processes, products, formulae, apparatus, techniques, know-how,
marketing plans, data, improvements, strategies, forecasts, customer
lists, and technical requirements of customers, unless such information
is in the public domain to such an extent as to be readily available to
competitors;
(b) The Executive acknowledges that the Company has exclusive
property rights to all Proprietary Information and the Executive hereby
assigns all rights he might otherwise possess in any Proprietary
Information to the Company. Except as required in the performance of
his duties to the Company, the Executive will not at any time during or
after the term of his engagement, which term shall include any time in
which the Executive may be retained by the Company as a consultant,
directly or indirectly use, communicate, disclose or disseminate any
Proprietary Information or any other information of a secret,
proprietary, confidential or generally undisclosed nature relating to
the Company, its products, customers, processes and services, including
information relating to testing, research, development, manufacturing,
marketing and selling;
(c) All documents, records, notebooks, notes, memoranda and
similar repositories of, or containing, Proprietary Information or any
other information of a secret, proprietary, confidential or generally
undisclosed nature relating to the Company or its operations and
activities made or compiled by the Executive at any time or made
available to him or her prior to or during the term of his engagement
by the Company, including any and all copies thereof, shall be the
property of the Company, shall be held by him or her in trust solely
for the benefit of the Company, and shall be delivered to the Company
by him or her on the termination of his or her engagement or at any
other time on the request of the Company; and
(d) The Executive will not assert any rights under any
inventions, copyrights, discoveries, concepts or ideas, or improvements
thereof, or know-how related thereto, as having been made or acquired
by him or her prior to his or her being engaged by the Company or
during the term of his engagement if based on or otherwise related to
Proprietary Information.
16. ASSIGNMENT OF INVENTIONS.
(a) For purposes of this Section 16, the term "Inventions"
shall mean discoveries, concepts, and ideas, whether patentable or
copyrightable or not, including but not limited to improvements,
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know-how, data, processes, methods, formulae, and techniques, as well
as improvements thereof or know-how related thereto, concerning any
past, present or prospective activities of the Company which the
Executive makes, discovers or conceives (whether or not during the
hours of his engagement or with the use of the Company's facilities,
materials or personnel), either solely or jointly with others during
his or her engagement by the Company or any affiliate and, if based on
or related to Proprietary Information, at any time after termination of
such engagement. All Inventions shall be the sole property of the
Company, and Executive agrees to perform the provisions of this Section
16 with respect thereto without the payment by the Company of any
royalty or any consideration therefor other than the regular
compensation paid to the Executive in the capacity of an employee or
consultant.
(b) The Executive shall maintain written notebooks in which he
or she shall set forth, on a current basis, information as to all
Inventions, describing in detail the procedures employed and the
results achieved as well as information as to any studies or research
projects undertaken on the Company's behalf. The written notebooks
shall at all times be the property of the Company and shall be
surrendered to the Company upon termination of his or her engagement
or, upon request of the Company, at any time prior thereto.
(c) The Executive shall apply, at the Company's request and
expense, for United States and foreign letters patent or copyrights
either in the Executive's name or otherwise as the Company shall
desire.
(d) The Executive hereby assigns to the Company all of his or
her rights to such Inventions, and to applications for United States
and/or foreign letters patent or copyrights and to United States and/or
foreign letters patent or copyrights granted upon such Inventions.
(e) The Executive shall acknowledge and deliver promptly to
the Company, without charge to the Company, but at its expense, such
written instruments (including applications and assignments) and do
such other acts, such as giving testimony in support of the Executive's
inventorship, as may be necessary in the opinion of the Company to
obtain, maintain, extend, reissue and enforce United States and/or
foreign letters patent and copyrights relating to the Inventions and to
vest the entire right and title thereto in the Company or its nominee.
The Executive acknowledges and agrees that any copyright developed or
conceived of by the Executive during the term of Executive's employment
which is related to the business of the Company shall be a "work for
hire" under the copyright law of the United States and other applicable
jurisdictions.
(f) The Executive represents that his or her performance of
all the terms of this Agreement and as an employee of or consultant to
the Company does not and will not breach any trust prior to his or her
employment by the Company. The Executive agrees not to enter into any
agreement either written or oral in conflict herewith and represents
and agrees that he or she has not brought and will not bring with him
to the Company or use in the performance of his or her responsibilities
at the Company any materials or documents of a former employer which
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are not generally available to the public, unless he or she has
obtained written authorization from the former employer for their
possession and use, a copy of which has been provided to the Company.
(g) No provisions of this Section shall be deemed to limit the
restrictions applicable to the Executive under Section 15.
(h) No provisions of this Section shall be deemed or construed
to require the Executive to assign to the Company any rights or
intellectual property with respect to any invention which (i) is
created by the Executive entirely on his own time, (ii) does not
constitute an "employment invention" as defined in the Utah Employment
Inventions Act, and (iii) is not exempted from the application f the
Utah Employment Inventions Act.
17. SHOP RIGHTS.
The Company shall also have the royalty-free right to use in its
business, and to make, use and sell products, processes and/or services derived
from any inventions, discoveries, concepts and ideas, whether or not patentable,
including but not limited to processes, methods, formulas and techniques, as
well as improvements thereof or know-how related thereto, which are not within
the scope of Inventions as defined in Section 16 but which are conceived or made
by the Executive during the period he or she is engaged by the Company or with
the use or assistance of the Company's facilities, materials or personnel.
18. NON-COMPETE.
The Executive hereby agrees that during the term of this Agreement and
for the period of one year from the termination hereof, that the Executive will
not:
(a) Within any jurisdiction or marketing area in the United
States in which the Company or any subsidiary thereof is doing
business, own, manage, operate or control any business of the type and
character engaged in and competitive with the Company or any subsidiary
thereof. For purposes of this Section, ownership of securities of not
in excess of five percent (5%) of any class of securities of a public
company shall not be considered to be competition with the Company or
any subsidiary thereof; or
(b) Within any jurisdiction or marketing area in the United
States in which the Company or any subsidiary thereof is doing
business, act as, or become employed as, an officer, director,
employee, consultant or agent of any business of the type and character
engaged in and competitive with the Company or any of its subsidiaries;
or
(c) Solicit any similar business to that of the Company's for,
or sell any products that are in competition with the Company's
products to, any company in the United States, which is, as of the date
hereof, a customer or client of the Company or any of its subsidiaries,
or was such a customer or client thereof within two years prior to the
date of this Agreement; or
(d) Solicit the employment of any full time employee employed
by the Company or its subsidiaries as of the date of termination of
this Agreement.
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19. REMEDIES AND JURISDICTION.
(a) The Executive hereby acknowledges and agrees that a breach
of the agreements contained in this Agreement will cause irreparable
harm and damage to the Company, that the remedy at law for the breach
or threatened breach of the agreements set forth in this Agreement will
be inadequate, and that, in addition to all other remedies available to
the Company for such breach or threatened breach (including, without
limitation, the right to recover damages), the Company shall be
entitled to injunctive relief for any breach or threatened breach of
the agreements contained in this Agreement.
(b) All claims, disputes and other matters in question between
the parties arising under this Agreement, shall, unless otherwise
provided herein, be decided by arbitration in Salt Lake City, Utah, in
accordance with the Model Employment Arbitration Procedures of the
American Arbitration Association (including such procedures governing
selection of the specific arbitrator or arbitrators), unless the
parties mutually agree otherwise. The Company shall pay the costs of
any such arbitration. The award by the arbitrator or arbitrators shall
be final, and judgment may be entered upon it in accordance with
applicable law in any state or Federal court having jurisdiction
thereof.
20. ATTORNEYS' FEES.
In the event that either party hereunder institutes any legal
proceedings in connection with its rights or obligations under this Agreement,
the prevailing party in such proceeding shall be entitled to recover from the
other party, all costs incurred in connection with such proceeding, including
reasonable attorneys' fees, together with interest thereon from the date of
demand at the rate of twelve percent (12%) per annum.
21. SUCCESSORS.
This Agreement and all rights of the Executive shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representatives, estates, executors, administrators, heirs and beneficiaries. In
the event of the Executive's death, all amounts payable to the Executive under
this Agreement shall be paid to the Executive's surviving spouse, or the
Executive's estate if the Executive dies without a surviving spouse. This
Agreement shall inure to the benefit of, be binding upon and be enforceable by,
any successor, surviving or resulting corporation or other entity to which all
or substantially all of the business and assets of the Company shall be
transferred whether by merger, consolidation, transfer or sale.
22. ENFORCEMENT.
The provisions of this Agreement shall be regarded as divisible, and if
any of said provisions or any part hereof are declared invalid or unenforceable
by a court of competent jurisdiction, the validity and enforceability of the
remainder of such provisions or parts hereof and the applicability thereof shall
not be affected thereby.
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23. AMENDMENT OR TERMINATION.
This Agreement may not be amended or terminated during its term, except
by written instrument executed by the Company and the Executive.
24. SURVIVABILITY.
The provisions of Sections 15, 16, 17, 18, 19, and 20 shall survive
termination of this Agreement.
25. ENTIRE AGREEMENT.
This Agreement sets forth the entire agreement between the Executive
and the Company with respect to the subject matter hereof, and supersedes all
prior oral or written agreements, negotiations, commitments and understandings
with respect thereto.
26. VENUE; GOVERNING LAW.
This Agreement and the Executive's and Company's respective rights and
obligations hereunder shall be governed by and construed in accordance with the
laws of the State of Utah without giving effect to the provisions, principles,
or policies thereof relating to choice or conflicts of laws.
27. NOTICE.
Notices given pursuant to this Agreement shall be in writing and shall
be deemed given when received, and if mailed, shall be mailed by United States
registered or certified mail, return receipt requested, addressee only, postage
prepaid, if to the Company, to:
Company: Xxxxx & Xxxxxxxxxx Computer Corporation
000 Xxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Human Resources
Fax: (000) 000-0000
Executive: Xxxxxxxx X. Xxxxxx
X.X. Xxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Phone: (000) 000-0000
or to such other address as the Company shall have given to the Executive or, if
to the Executive, to such address as the Executive shall have given to the
Company.
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28. NO WAIVER.
No waiver by either party at any time of any breach by the other party
of, or compliance with, any condition or provision of this Agreement to be
performed by the other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same time or any prior or subsequent time.
29. HEADINGS.
The headings herein contained are for reference only and shall not
affect the meaning or interpretation of any provision of this Agreement.
30. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and the Executive has executed this
Agreement, on the date and year first above written.
"COMPANY"
XXXXX & XXXXXXXXXX COMPUTER
CORPORATION, a Utah corporation
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Xxxxx X. Xxxxx, President and CEO
"EXECUTIVE"
/s/ Xxxxxxxx X. Xxxxxx
--------------------------------------
Xxxxxxxx X. Xxxxxx
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