THE XXXXX PARTNERSHIP, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made between The
Xxxxx Partnership, Inc., a Delaware corporation and its affiliated companies
(collectively referred to as the "Company"), and Xxxxxx X. Xxxxx ("Xxxxx").
Unless otherwise indicated, all references to Sections are to Sections in this
Agreement. This Agreement is effective as of the "Effective Date" set forth in
Section 11 below.
W I T N E S S E T H:
WHEREAS, the Company desires to obtain the services of Xxxxx, and Xxxxx
desires to be employed by the Company upon the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the premises, the agreements herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as of the date hereof as follows:
1. Employment. The Company hereby agrees to employ Xxxxx, and Xxxxx hereby
agrees to serve the Company, as its Chief Executive Officer ("Employment").
2. Scope of Employment.
(a) During the Employment, Xxxxx will serve as Chief Executive
Officer and, subject to his election in accordance with the Company's by-laws
and with applicable law, as a member of the Board. In that connection, Xxxxx
will (i) devote his full time, attention, and energies to the business of the
Company and will diligently and to the best of his ability perform all duties
incident to his employment hereunder; (ii) use his best efforts to promote the
interests and goodwill of the Company; and (iii) perform such other duties
commensurate with his office as the Board of Directors of the Company may from
time-to-time assign to him.
(b) Section 2(a) shall not be construed as preventing Xxxxx
from (i) serving on corporate, civic or charitable boards or committees, or (ii)
making investments in other businesses or enterprises; provided in no event
shall any such service, business activity or investment require the provision of
substantial services by Xxxxx to the operations or the affairs of such
businesses or enterprises such that the provision thereof would interfere in any
respect with the performance of Xxxxx'x duties hereunder.
3. Compensation and Benefits During Employment. During the Employment, the
Company shall provide compensation to Xxxxx as follows.
(a) The Company shall pay Xxxxx GBP $10,000 per month in equal
semi-monthly installments, without deduction for taxes as Xxxxx shall be
responsible for the payment of any and all taxes required by law.
(b) The Company shall pay Xxxxx GBP $3,500 per month for a residence
in London, England.
(c) The Company shall pay Xxxxx GBP $3,500 per month for a car
allowance, car insurance and gas.
(d) The Company will reimburse Xxxxx for reasonable business expenses
incurred by Xxxxx in connection with the Employment in accordance with the
Company's then-current policies.
(d) Xxxxx will be entitled to participate in any incentive program or
bonus program of the Company which may be implemented in the future.
(e) The Company shall pay for Xxxxx'x and Xxxxx'x wife, if any, major
medical and dental coverage throughout the term of this Agreement.
(f) Xxxxx shall have the right to be paid directly by the Company or
to xxxx the Company to pay the expenses directly.
Any act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board or based upon the advice of counsel for the
Company shall be conclusively presumed to be done, or omitted to be done, by
Xxxxx in good faith and in the best interests of the Company and thus shall not
be deemed grounds for termination for Cause.
4. Confidential Information.
(a) Xxxxx acknowledges that the law provides the Company with protection
for its trade secrets and confidential information. Xxxxx will not disclose,
directly or indirectly, any of the Company's confidential business information
or confidential technical information to anyone without authorization from the
Company's management. Xxxxx will not use any of the Company's confidential
business information or confidential technical information in any way, either
during or after the Employment with the Company, except as required in the
course of the Employment.
(b) Xxxxx will strictly adhere to any obligations that may be owed to
former employers insofar as Xxxxx'x use or disclosure of their confidential
information is concerned.
(c) Information will not be deemed part of the confidential information
restricted by this Section 4 if Xxxxx can show that: (i) the information was in
Xxxxx'x possession or within Xxxxx'x knowledge before the Company disclosed it
to Xxxxx; or (ii) the information was or became generally known to those who
could take economic advantage of it; or (iii) Xxxxx obtained the information
from a party having the right to disclose it to Xxxxx without violation of any
obligation to the Company, or (iv) Xxxxx is required to disclose the information
pursuant to legal process (e.g., a subpoena), provided that Xxxxx notifies the
Company immediately upon receiving or becoming aware of the legal process in
question. No combination of information will be deemed to be within any of the
four exceptions in the previous sentence, however, whether or not the component
parts of the combination are within one or more exceptions, unless the
combination itself and its economic value and principles of operation are
themselves within such an exception.
(d) All originals and all copies of any drawings, blueprints, manuals,
reports, computer programs or data, notebooks, notes, photographs, and all other
recorded, written, or printed matter relating to research, manufacturing
operations, or business of the Company made or received by Xxxxx during the
Employment are the property of the Company. Upon termination of the Employment,
whether or not for Cause, Xxxxx will immediately deliver to the Company all
property of the Company which may still be in Xxxxx'x possession. Xxxxx will not
remove or assist in removing such property from the Company's premises under any
circumstances, either during the Employment or after termination thereof, except
as authorized by the Company's management.
(e) For a period of six (6) months after the date of termination of the
Employment, Xxxxx will not, either directly or indirectly, hire or employ or
offer or participate in offering employment to any person who at the time of
such termination or at any time during such year following the time of such
termination was an employee of the Company without the prior written consent of
the Company.
5. Ownership of Intellectual Property. The following provisions apply
except to the extent expressly stated otherwise in Schedule 1.
(a) The Company will be the sole owner of any and all of Xxxxx'x Inventions
that are related to the Company's business, as defined in more detail below.
(b) For purposes of this Agreement, "Inventions" means all inventions,
discoveries, and improvements (including, without limitation, any information
relating to manufacturing techniques, processes, formulas, developments or
experimental work, work in progress, or business trade secrets), along with any
and all other work product relating thereto.
(c) An Invention is "related to the Company's business" ("Company-Related
Invention") if it is made, conceived, or reduced to practice by Xxxxx (in whole
or in part, either alone or jointly with others, whether or not during regular
working hours), whether or not potentially patentable or copyrightable in the
U.S. or elsewhere, and it either: (i) involves equipment, supplies, facilities,
or trade secret information of the Company; (ii) involves the time for which
Xxxxx was or is to be compensated by the Company; (iii) relates to the business
of the Company or to its actual or demonstrably anticipated research and
development; or (iv) results, in whole or in part, from work performed by Xxxxx
for the Company.
(d) Xxxxx will promptly disclose to the Company, or its nominee(s), without
additional compensation, all Company-Related Inventions.
(e) Xxxxx will assist the Company, at the Company's expense, in protecting
any intellectual property rights that may be available anywhere in the world for
such Company-Related Inventions, including signing U.S. or foreign patent
applications, oaths or declarations relating to such patent applications, and
similar documents.
(f) To the extent that any Company-Related Invention is eligible under
applicable law to be deemed a "work made for hire," or otherwise to be owned
automatically by the Company, it will be deemed as such, without additional
compensation to Xxxxx. In some jurisdictions, Xxxxx may have a right, title, or
interest ("Right," including without limitation all right, title, and interest
arising under patent law, copyright law, trade-secret law, semiconductor chip
protection law, or otherwise, anywhere in the world, including the right to xxx
for present or past infringement) in certain Company-related Inventions that
cannot be automatically owned by the Company. In that case, if applicable law
permits Xxxxx to assign Xxxxx'x Right(s) in future Company-Related Inventions at
this time, then Xxxxx hereby assigns any and all such Right(s) to the Company,
without additional compensation to Xxxxx; if not, then Xxxxx agrees to assign
any and all such Right(s) in any such future Company-Related Inventions to the
Company or its nominee(s) upon request, without additional compensation to
Xxxxx.
(g) To the extent that Xxxxx retains any so-called "moral rights" or
similar rights in a Company-Related Invention as a matter of law, Xxxxx
authorizes the Company or its designee to make any changes it desires to any
part of that Company-Related Invention; to combine any such part with other
materials; and to withhold Xxxxx'x identity in connection with any business
operations relating to that Company-Related Invention; in any case without
additional compensation to Xxxxx.
6. Noncompetition. As a condition to, and in consideration of, the
Company's entering into this Agreement, and giving Xxxxx access to certain
confidential and proprietary information, which Xxxxx recognizes is valuable to
the Company and, therefore, its protection and maintenance constitutes a
legitimate interest to be protected by the provisions of this Section 6 as
applied to Xxxxx and other employees similarly situated to Xxxxx, Xxxxx hereby
agrees as follows:
(a) Xxxxx acknowledges that the obligations of this Agreement are directly
related to the Employment and are necessary to protect the Company's legitimate
business interests. Xxxxx acknowledges that the Company's need for the covenants
set forth in this Agreement is based on the following: (i) the substantial time,
money and effort expended and to be expended by the Company in developing
technical designs, computer program source codes, marketing plans and similar
confidential information; (ii) the fact that Xxxxx will be personally entrusted
with the Company's confidential and proprietary information; (iii) the fact
that, after having access to the Company's technology and other confidential
information, Xxxxx could become a competitor of the Company; and (iv) the highly
competitive nature of the Company's industry, including the premium that
competitors of the Company place on acquiring proprietary and competitive
information.
(b) Notwithstanding the foregoing, Xxxxx may acquire an ownership interest,
directly or indirectly, of not more than 5% of the outstanding securities of any
corporation which is engaged in a business competitive with the Company and
which is listed on any recognized securities exchange or traded in the over the
counter market in the United States; provided, that such investment is of a
totally passive nature and does not involve Xxxxx devoting time to the
management or operations of such corporation.
7. Legal Fees and Expenses. In the event of a lawsuit, arbitration, or
other dispute-resolution proceeding between the Company and Xxxxx arising out of
or relating to this Agreement, the prevailing party, in the proceeding as a
whole and/or in any interim or ancillary proceedings (e.g., opposed motions,
including without limitation motions for preliminary or temporary injunctive
relief) will be entitled to recover its reasonable attorneys' fees and expenses
unless the court or other forum determines that such a recovery would not serve
the interests of justice.
8. Successors.
(a) This Agreement shall inure to the benefit of and be binding upon (i)
the Company and its successors and assigns and (ii) Xxxxx and Xxxxx'x heirs and
legal representatives, except that Xxxxx'x duties and responsibilities under
this Agreement are of a personal nature and will not be assignable or delegable
in whole or in part.
(b) the Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to assume expressly and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place. As used in this
Agreement, "the Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
9. Arbitration.
(a) Except as set forth in paragraph (b) of this Section 9 or to the extent
prohibited by applicable law, any dispute, controversy or claim arising out of
or relating to this Agreement will be submitted to binding arbitration before a
single arbitrator in accordance with the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association in effect on the
date of the demand for arbitration. The arbitration shall take place before a
single arbitrator, who will preferably but not necessarily be a lawyer but who
shall have at least five years' experience in working in or with computer
software companies. Unless otherwise agreed by the parties, the arbitration
shall take place in the city in which Xxxxx'x principal office space is located
at the time of the dispute or was located at the time of termination of the
Employment (if applicable). The arbitrator is hereby directed to take all
reasonable measures not inconsistent with the interests of justice to expedite,
and minimize the cost of, the arbitration proceedings.
(b) To protect Inventions, trade secrets, or other confidential
information, and/or to enforce the noncompetition provisions of Section 5, the
Company may seek temporary, preliminary, and/or permanent injunctive relief in a
court of competent jurisdiction, in each case, without waiving its right to
arbitration.
(c) At the request of either party, the arbitrator may take any interim
measures s/he deems necessary with respect to the subject matter of the dispute,
including measures for the preservation of confidentiality set forth in this
Agreement.
(d) Judgment upon the award rendered by the arbitrator may be entered in
any court having jurisdiction.
10. Indemnification.
(a) Company shall to the full extent permitted by law or as set forth in
the Articles of Incorporation, and any future amendments, and the Bylaws of the
Company, indemnify, defend and hold harmless Xxxxx from and against any and all
claims, demands, liabilities, damages, losses and expenses (including
attorney's, court costs and disbursements) arising out of the performance of
duties hereunder except in the case of willful misconduct.
(b) Xxxxx shall indemnify the Company with respect to the payment of any
and all taxes owed under this Agreement.
11. Other Provisions.
(a) All notices and statements with respect to this Agreement must be in
writing. Notices to the Company shall be delivered to the Chairman of the Board
or any vice president of the Company. Notices to Xxxxx may be delivered to Xxxxx
in person or sent to Xxxxx'x then-current home address as indicated in the
Company's records.
(b) This Agreement sets forth the entire agreement of the parties
concerning the subjects covered herein; there are no promises, understandings,
representations, or warranties of any kind concerning those subjects except as
expressly set forth in this Agreement.
(c) Any modification of this Agreement must be in writing and signed by all
parties; any attempt to modify this Agreement, orally or in writing, not
executed by all parties will be void.
(d) If any provision of this Agreement, or its application to anyone or
under any circumstances, is adjudicated to be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability will not affect any other
provision or application of this Agreement which can be given effect without the
invalid or unenforceable provision or application and will not invalidate or
render unenforceable such provision or application in any other jurisdiction.
(e) This Agreement will be governed and interpreted under the laws of the
United States of America and of the State of Texas law as applied to contracts
made and carried out in Texas by residents of Texas.
(f) No failure on the part of any party to enforce any provisions of this
Agreement will act as a waiver of the right to enforce that provision.
(g) Termination of Xxxxx'x employment by the Company, with or without
cause, will not affect the continued enforceability of this Agreement and Xxxxx
shall be entitled to receive as severance pay, an amount equal to the remainder
of Xxxxx'x salary (GBP $10,000 per month), car allowance (GBP $3,500 per month),
and residence allowance (GBP $3,500 per month) for the remainder of this
Agreement at such time as this Agreement is terminated, and Xxxxx shall have the
rights to all Options, vested or not vested, under the same terms as if this
Agreement had not terminated.
(h) Section headings are for convenience only and shall not define or limit
the provisions of this Agreement.
(i) This Agreement may be executed in several counterparts, each of which
is an original. It shall not be necessary in making proof of this Agreement or
any counterpart hereof to produce or account for any of the other counterparts.
A copy of this Agreement signed by one party and Faxed to another party shall be
deemed to have been executed and delivered by the signing party as though an
original. A photocopy of this Agreement shall be effective as an original for
all purposes.
Effective Date April 2, 2001
Term Two years
Office / Position Chief Executive Officer
Initial Salary GBP $10,000 per month
This Agreement contains provisions requiring binding arbitration of
disputes. By signing this Agreement, Xxxxx acknowledges that he or she (i) has
read and understood the entire Agreement; (ii) has received a copy of it (iii)
has had the opportunity to ask questions and consult counsel or other advisors
about its terms; and (iv) agrees to be bound by it.
Executed to be effective as of the Effective Date.
The Xxxxx Partnership, Inc., by: Employee:
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Signature Signature
Xxxxx Xxxxxxxxxx Xxxxx
Printed name
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