Exhibit 10.11
SEPARATION AGREEMENT
BY AND BETWEEN
4net Software, Inc. And XXXXXXX XXXX
This SEPARATION AGREEMENT made as of this 21st day of September, 2001,
between 4net Software, Inc., a Delaware corporation ("4net Software"), with
offices at 00 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxxx 00000 and Xxxxxxx
Xxxx ("Park"), with an address 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000.
W I T N E S S E T H
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1. Park was employed by 4net Software pursuant to a written employment
agreement, dated April 24, 2000 (the "Employment Agreement").
2. Park exercised his option to terminate the Employment Agreement, which
became effective on September 20, 2001.
3. Several provisions contained in the Employment Agreement remain in
effect for a period of two years following the termination of the
Employment Agreement, including a covenant not to compete and certain
confidentiality requirements.
4. 4net Software and Park are entering this Separation Agreement to set
forth the relationship between the parties following the termination
of the Employment Agreement.
NOW, THEREFORE, based upon the terms, conditions, representation and
warranties set forth below, it is agreed as follows:
1. Termination of Park's Employment. It is agreed and understood by and
between the parties hereto, that Park's employment with 4net Software
is hereby terminated effective September 20, 2001. Accordingly, Park
shall not be entitled to receive any compensation, salary or benefits
from 4net Software following September 21, 2001, other than those
required to be provided by applicable law.
2. Non-Competition Agreement. It is agreed and understood by and between
the parties hereto, that Park will no longer be bound by the
Non-Competition Agreement contained in the Employment Agreement, to
the extent that Park shall be permitted to engage directly and
indirectly in the custom software development and web design and
development business. It is, further, agreed and understood by and
between the parties hereto, that Park shall be permitted to perform
custom software development and web design and development services
for Corning, Inc. and Hardings, Inc. 4net Software agrees that it will
not commence any litigation or arbitration against Park for engaging
in the custom software development and web design and development
business in competition with 4net Software or for performing such
services with the exception of the following businesses, their
parents, subsidiaries, affiliates and any future referrals from such
businesses; ITT Industries, National Investment Bankers Association
(NIBA), HD Xxxxx and the other current clients 4net Software, which
are set forth on Exhibit A to this Separation Agreement (the
"Release").
3. Park's Availability as a Contractor. It is agreed and understood by
and between the parties hereto, that Park will be available to 4net
Software, as an independent contractor, to perform custom software
development and web design and development services for the following
clients of 4net Software: ITT, including ITT's Goulds Pump Division,
NIBA and Xxxxx. 4net Software agrees to
provide Park reasonable notice and to compensate Park on a per hour
basis at a mutually agreed to hourly rate for such services.
4. Confidentiality. It is agreed and understood by and between the
parties hereto, that Park remains bound by the Confidentiality
provisions contained in Employment Agreement.
5. Intellectual Property. It is agreed and understood by and between the
parties hereto, that 4net Software is the owner of the software and
other intellectual property currently used, owned or marketed by 4net
Software, including 4netManager, TouchIn and SaveSpot (hereinafter
referred to as the "Intellectual Property"). Park agrees that he will
not disclose to any third party any non-public information concerning
the Intellectual Property, without obtaining 4net Software's written
authorization in advance.
6. License to Park 4net Software.
X. Xxxxx of License. Pursuant to the terms and subject to the
conditions of this Separation Agreement and for the consideration
set forth herein, 4net Software hereby grants to Park a
non-transferable, non-assignable, non-exclusive license to use
4netManager in connection with Park's custom software development
and web design and development business (the "License"). Park
understands and agrees that this is a license to use the
4netManager and is not a contract of sale or assignment of the
4netManager. Park understands and agrees that 4net Software owns
the 4netManager.
B. Restrictions of License. Any intellectual property rights in and
to the 4netManager, including, but not limited to patents, design
rights, copyrights, trademarks, trade secret rights and other
proprietary material belong exclusively to 4net Software, and
Park is obtaining no rights other than the right to use
4netManager in accordance with the terms and conditions of the
License.
C. Reciprocal License. During the term, as defined below, of this
License, Park is permitted to decompile, reverse engineer,
disassemble or otherwise reduce 4netManager to a
human-perceivable form and to create derivative works based upon
4netManager in whole or in part. As consideration for this
License, Park agrees to provide 4net Software all modifications
and/or updates to 4netManager to use, market and sell for profit
any derivative software or intellectual property created by Park
from or in connection with 4netManager (the "Reciprocal
License").
D. Term of License. The License and Reciprocal License shall have a
term of two (2) years commencing on September 21, 2001 and
terminating on September 20, 2003. It is agreed and understood
that the License and Reciprocal License shall renewable every two
(2) years by either party.
7. Indemnification on Bank Loans. 4net Software hereby agrees to
indemnify and hold Park harmless from the loans made to 4net Software
by Elmira Savings Bank, FSB and Southern Tier Economic Growth, Inc.
8. Ownership of Park Shares. Park is the record owner of 150,000 shares
of restricted common stock of 4net Software, Inc. represented by stock
certificate number _____________ (the "Park Shares"). Park represents
and warrants to 4net Software that Park is the lawful owner of the
Park Shares and he has full power and authority to transfer to 4net
Software all right, title and interest in and to the Park Shares to
4net Software. Park represents and warrants, further, that Park will
transfer to 4net Software good and valid title to the Park Shares,
free and clear of any encumbrances, claims, liens or other limitations
on ownership or transferability.
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9. Transfer of Shares to 4net Software. As partial consideration for this
Separation Agreement, Park shall transfer to 4net Software the Park
Shares. As soon as practicable after the signing of this Separation
Agreement Park shall deliver to 4net Software certificates for the
Park Shares, in the name of 4net Software, along with stock powers
duly endorsed in blank.
10. Transfer of Emira Office Equipment. As partial consideration for this
Separation Agreement, 4net Software hereby agrees to transfer its
ownership interest in the equipment located at 4net Software's Emira
Office, which is set forth in Exhibit B to this Agreement (the
"Equipment"). 4net Software will provide Park a xxxx of sale for the
Equipment.
11. Park's Assumption of Lease. Effective October 1, 2001, Park will
assume or otherwise have responsibility for the performance of all
obligations, including the payment of rent, under the terms of that
certain lease on the premises located at 000 X. Xxxx Xxxxxx, Xxxxx 0,
Xxxxxx, Xxx Xxxx 00000 (the "Lease"). Park will obtain any necessary
waiver from the landlord on the Lease. Park agrees to indemnify and
hold 4net Software harmless from any and all liability concerning the
Lease following October 1, 2001.
12. Good Faith and Fair Dealing Clause. It is agreed and understood by and
between the parties hereto, that the parties hereto agree to act in
good faith and to deal fairly with each other. Accordingly, the
parties hereto specifically agree not to slander or to make any
disparaging statements to any customer or prospective customer of the
other party.
13. Entire Agreement. This Separation Agreement sets forth the entire
understanding of the parties and merges and supersedes any prior or
contemporaneous agreements between the parties pertaining to the
subject matter hereof.
14. Governing Law. This Separation Agreement is made and executed and
shall be governed by the laws of the State of New York, without regard
to the conflicts of law principles thereof.
15. Counterparts; Facsimile. This Separation Agreement may be executed in
two or more counterparts (including by facsimile), each of which shall
be deemed an original, but all of which together shall constitute one
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Separation
Agreement on the day and year first above written.
4net Software, Inc.
By:
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Xxxxxx X. Xxxxxxx, President
Xxxxxxx Xxxx
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Xxxxxxx Xxxx
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