EMPLOYMENT AGREEMENT
by and between
PREDICT IT, INC.
and
XXXXXX X. XXXXXXX
THIS EMPLOYMENT AGREEMENT this ("Agreement"), effective as of
May 19, 1999, is entered into by and between Xxxxxx X. Xxxxxxx ("Employee") and
Predict It, Inc., a Delaware corporation (the "Company"). This Employment
Agreement, the Non-Competition Agreement (defined below), and the Non-Disclosure
and Developments Agreement (defined below) are herein collectively referred to
as this "Agreement."
WHEREAS, the Company desires to establish its right to the
services of Employee in the capacity described below, on the terms and
conditions, and subject to the rights of termination hereinafter set forth, and
Employee is willing to accept such employment on such terms and conditions;
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth, and intending to be legally bound hereby, Employee and
the Company have agreed and do hereby agree as follows:
1. Duties. The Company does hereby employ, engage and hire the
Employee as President of the Company and the Employee does hereby accept and
agree to such hiring, engagement and employment. Employee agrees to perform any
and all duties and to assume any and all responsibilities that may be reasonably
assigned to him from time to time by the Board of Directors of the Company.
During the Employment Term (as hereinafter defined) and as long as the Company
shall not be in default of a material obligation, excluding any periods of
vacation and sick leave to which the Employee is entitled, the Employee will
devote his full time (at least 40 hours per week), energy and skill to the
performance of his duties for the Company and for the benefit of the Company.
Furthermore, the Employee will exercise his due diligence and care in the
performance of his duties to the Company under this Agreement.
2. Compensation.
(a) Base Salary. During the Employment Term, the
Company shall pay Employee, and Employee agrees to accept from the Company, in
full payment for his services and promises to the Company (specifically
including the promises set forth in (i) the Non-Competition Agreement, attached
hereto as Exhibit A and by this reference incorporated herein in its entirety
(the "Non-Competition Agreement"), and (ii) the Non-Disclosure and Developments
Agreement, attached hereto as Exhibit B and by this reference incorporated
herein in its entirety (the "Non-Disclosure and Developments Agreement")) a
base salary (the "Base Salary") at a rate of One Hundred Forty Thousand Dollars
($140,000) per year, payable not less than once per month in accordance with the
Company's payroll practices. The Base Salary will be subject to review by
management and any merit increases will be subject to Company policy.
(b) Bonus Plan Participation. In addition to his base
salary, Employee shall also be eligible to receive annual bonus compensation at
the sole discretion of the Compensation Committee of the Board of Directors of
the Company.
3. Benefits. Employee shall be entitled to participate in any
benefit programs adopted from time to time by the Company for the benefit of its
employees commensurate with Employee's position and Employee shall receive such
other benefits as may be granted to him from time to time by the Company's Board
of Directors.
4. Vacation. Employee is entitled to fifteen (15) days paid
vacation or sick leave per year after six (6) months of employment, with any
such vacation to be scheduled and taken in accordance with the Company's
standard vacation policies.
5. Options.
(a) Employee shall receive, upon execution hereof
(the "Execution Date"), five year options to purchase 537,198 shares of Common
Stock of the Company, which shall represent 5% of the total outstanding capital
stock of the Company on a fully-diluted basis as of the date of such grant,
after giving effect to the grant of such options (the "5% Options"). The 5%
Options shall vest in six equal portions over three years as follows: the first
two portions (for a total of one-third of the 5% Options) shall vest one year
following the Execution Date, and one portion (one-sixth of the 5% Options)
shall vest every six months thereafter. The 5% Options shall have an exercise
price of $2.00 per share and shall include a provision for a cashless exercise.
The 5% Options shall be considered, at the Company's option, to be part of the
Company's Stock Option Plan in the event that such a plan is approved by the
Company's Board of Directors and Shareholders, and to the extent possible, shall
be considered as incentive stock options.
(b) (i) If at any time commencing on the Execution
Date and ending two years following the Execution Date, the Company has issued
any additional shares of its Common Stock or has issued any securities
convertible into its Common Stock, in connection with an acquisition of assets
or securities or other similar corporate transaction (each, a "Transaction"),
then, as of the close of business on the day of the closing of such Transaction,
the Company shall issue to Employee additional options (which shall expire on
the fifth anniversary of the Execution Date) to purchase such number of
additional shares of Common Stock as shall be necessary so that all options
issued to Employee pursuant to Section 5(a) and this Section 5(b) (including any
shares issued upon exercise of any such options) shall then equal an equity
holding in the Company of 5% of the then outstanding capital stock of the
Company on a fully-diluted basis, after giving effect to the issuance of such
options.
(ii) If during any three month period
commencing on the Execution Date and ending two years following the Execution
Date, the Company has issued any securities convertible into its Common Stock to
an employee, director, consultant, or advisor, whether under any option plan or
otherwise, then, as of the close of business on the last day of each three month
period, the Company shall issue to Employee additional options (which shall
expire on the fifth anniversary of the Execution Date) to purchase such number
of additional shares of Common Stock
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as shall be necessary so that all options issued to Employee pursuant to Section
5(a) and this Section 5(b) (including any shares issued upon exercise of any
such options) shall then equal an equity holding in the Company of 5% of the
then outstanding capital stock of the Company on a fully-diluted basis, after
giving effect to the issuance of such options (referred to collectively herein
with the options granted to Employee pursuant to Section 5(b)(i), the
"Anti-Dilution Options").
(iii) The Anti-Dilution Options shall vest
in accordance and along with the 5% Options as if they had been granted (for
vesting purposes only) at the same time as the 5% Options. Any Anti-Dilution
Options shall be similar in form to the options granted pursuant to Section 5(a)
above and shall have an exercise price equal to the fair market value of the
Company's Common Stock on the date of grant.
(c) In addition, on the Execution Date, Employee
shall be granted five year options to purchase 2% of the outstanding Common
Stock of the Company on a fully-diluted basis as of the date of such grant,
without giving effect to the issuance of such options (the "Performance
Options"). The Performance Options shall vest in accordance with the
performance-based goals set forth below. The Performance Options shall be
similar in form to the options granted pursuant to Section 5(a) above and shall
have an exercise price equal to the fair market value of the Company's Common
Stock on the date of grant. The Performance Options shall not be subject to the
anti-dilution protection set forth is Section 5(b) above.
The performance based goals are as follows:
(i) 50% of the Performance Options shall vest on May
1, 2000 if the number of registered users of the Company exceeds 312,500 by such
date and the page views of the Company for April 2000 exceeds 25,000,000.
(ii) The remaining 50% of the Performance Options
shall vest on May 1, 2001 if the number of registered users of the Company
exceeds 937,500 by such date and the page views of the Company for April 2001
exceeds 85,714,275.
(iii) In the event that the performance based goals
for the May 1, 2000 vesting are not met by such date, then if by May 1, 2001,
the number of registered users of the Company exceeds 1,125,000 and the page
views of the Company for April 2001 exceed 102,857,130, then all of the
Performance Options shall vest as of May 1, 2001.
(d) Notwithstanding the foregoing, the 5% Options,
the Anti-Dilution Options, and to the extent not previously forfeited, the
Performance Options, in each case to the extent not then vested, shall vest
immediately as of the close of business on the day immediately prior to the
occurrence of a sale of all or substantially all of the Company's outstanding
securities or assets (a "Corporate Sale"). In addition, in the event that an
entity who does not presently hold more than 50% of the outstanding securities
of the Company gains control of more than 50% of the outstanding securities of
the Company, and Employee's employment hereunder is terminated within one year
of such change of control, then the 5% Options, the Anti-Dilution Options, and
to the extent not previously forfeited, the Performance Options, in each case to
the extent not then vested,
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shall vest immediately as of the close of business on the day immediately prior
to the occurrence of such change of control (a "50% Control Event" and
collectively with a Corporate Sale, a "Change of Control Event").
(e) Notwithstanding anything contained herein to the
contrary, the Company shall file and have declared effective a registration
statement on Form S-8 covering the shares of Common Stock underlying all of the
options granted hereunder (the "Underlying Shares") as soon as practicable after
such time as it is eligible for filing a registration statement on such form;
provided, that such registration statement may cover a stock option plan or
other employee benefit plan which includes such options.
(f) Commencing on the date in which the Company files
its next registration statement registering shares of its Common Stock, whether
for its own account or for the account of others, and ending on the earlier date
of (i) Employee has sold all of the Underlying Shares and (ii) Employee is able
to sell all of the remaining Underlying Shares pursuant to Rule 144 of the
Securities Act of 1933, as amended, at one time, the Company shall notify
Employee at least ten (10) days prior to the time that it intends to register
shares of its Common Stock for sale (other than pursuant to a Registration
Statement on Forms S-4 or S-8), and Employee shall have ten (10) days from the
date of such notice to inform the Company that it wishes to have some or all of
its Underlying Shares included in such Registration Statement. If such
registration of shares is to be made pursuant to an underwritten registration
statement, the number of Underlying Shares which Employee wishes to register
shall be subject to a pro-rata reduction (when compared to other shareholders of
the Company who are selling pursuant to similar rights) at the option of the
underwriter. No notice delivered pursuant to this section shall obligate the
Company to complete any proposed registration.
6. Business Expenses. The Company will reimburse Employee for
any and all necessary, customary, and usual expenses, properly receipted in
accordance with Company policies, incurred by Employee in performing his duties
hereunder.
7. Employment Period. The Company shall employ the Employee
for the duties as set forth in Section 1 for a three (3) year period commencing
as of the date hereof (the "Employment Term"), unless sooner terminated in
accordance with the provisions of this Employment Agreement.
8. Representation and Warranty of Employee. Employee
represents and warrants to the Company that Employee is under no contractual or
other restriction or obligation which is inconsistent with the execution of this
Agreement, the performance of his duties hereunder, or the other rights of the
Company hereunder.
9. Termination of Employment.
(a) Notwithstanding anything to the contrary herein
contained, on or after the date hereof and prior to the end of the Employment
Term, the Company or the Employee, as the case may be, shall have the right to
terminate Employee's services under this Agreement.
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Termination of Employee's employment shall be deemed termination for "cause" if
on account of: (i) Employee's voluntary resignation (other than as a result of
Employee's death or disability, or for the reasons set forth in subparagraphs
(x) and (y)); (ii) the failure by Employee to materially perform his duties and
obligations under this Agreement; (iii) refusal by Employee to implement, or
adhere to, reasonable policies or directives of the Board of Directors; (iv)
Employee is convicted of or pleads guilty to a felony crime; (v) conduct by
Employee which is in material violation of Employee's common law duty of loyalty
to the Company; (vi) Employee commits any act of fraud against the Company or
Employee engages in fraudulent conduct in connection with the business affairs
of the Company; (vii) conduct by Employee which is in material violation of any
provision of this Agreement; (viii) Employee is in breach of a representation or
warranty under this Agreement which breach is not cured within ten (10) business
days from receipt of written notice of such breach from the Company; and (ix)
Employee commits any act or omits to take any action in bad faith and to the
detriment of the Company. For the purposes of subsection (viii) above with
respect to non-competition agreements, only in the event that there is a
judicial determination or an arbitration ruling that Employee has violated any
non-competition agreement, or an injunction is placed on Employee's employment
hereunder, such determination, ruling, or injunction shall be considered a
breach of Employee's representation and warranty made hereunder. Cessation of
the employment relationship between Employee and the Company by reason of
Employee's death or permanent disability, or Employee's resignation because of
(x) the assignment to him of duties materially inconsistent with respect to his
position as contemplated by this Agreement, or (y) any material failure by the
Company to comply with the provisions of this Agreement, shall be deemed
termination without "cause."
(b) Termination because of Disabilities. Employee
shall be considered to be "disabled" for purposes of this Section 9 if Employee
is unable to perform his customary duties under this Agreement, with or without
reasonable accommodation, for a continuous period of two (2) months because of
physical or mental impairment, in which event this Agreement shall terminate in
accordance with the provisions of Section 9(d) hereof.
(c) Termination because of Death. In the event that
Employee shall die, then this Agreement shall terminate on the date of
Employee's death, and no further compensation shall be payable to Employee,
except as may otherwise be provided in Section 5(d) hereof or under any
insurance policy or similar instrument.
(d) Effect of Termination Without "Cause". If
Employee's employment is terminated without "cause," he shall be entitled to
thirty (30) days advance written notice of the termination. Employee shall, in
addition to salary earned during the notice period listed in the previous
sentence, be entitled to receive the equivalent of Employee's salary for an
additional six (6) months. Employee shall be entitled to any compensation
actually earned and vested (including, but not limited to, vesting in accordance
with the provisions of Section 5(d) above), but not paid, before the date of
termination. Additional compensation (bonuses) shall not be deemed earned until
the date when the particular target is reached or bonus triggering event occurs.
(e) Effect of Termination for "Cause". If Employee's
employment is terminated by the Company for "cause," the Company shall have the
option to terminate Employee
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with or without notice and the right to give notice of termination of Employee's
services hereunder as of a date to be specified in such notice and this
Agreement shall terminate on the date so specified (the "Termination Date").
Employee shall be entitled to receive only his base salary at the rate provided
in Section 2 through the Termination Date and Employee shall not be entitled to
any other compensation or benefits not already earned and vested on the
Termination Date.
(f) If Employee's employment is terminated by
Employee's voluntary resignation, Employee agrees to provide the Company with
thirty (30) days' advance written notice of such termination.
(g) Nothing contained in this Section 9 shall be
deemed to limit any other right the Company or the Employee may have to
terminate Employee's employment hereunder upon any ground permitted by law.
10. Indemnification. Employee shall be indemnified and held
harmless by the Company to the fullest extent authorized under Delaware law for
any claims, actions, suits, or proceedings (each, a "Proceeding") to which
Employee is a party by reason of the fact that Employee is or was a director or
officer of the Company; provided, however, that such indemnification shall not
apply for any Proceedings which are based on grossly negligent actions or
intentional misconduct of Employee.
11. Entire Agreement. This Agreement terminates and supercedes
any and all prior agreements and understandings between the Company and the
Employee (written, oral, or otherwise) with respect to employment or with
respect to the compensation of Employee by the Company. No other
representations, oral or written, have been made regarding the subject matter
hereof, other than those explicitly provided herein. Employee acknowledges that
he has not relied on any oral or written representations not explicitly
contained herein in executing this Agreement.
12. Assignment. This Agreement is personal in its nature and
neither of the parties hereto shall, without the consent of the other, assign or
transfer this Agreement or any rights or obligations hereunder; provided that,
in the event of a merger or consolidation of the Company with any other entity,
this Agreement shall, subject to the provisions hereof, be binding upon and
inure to the benefit of such successor and such successor shall discharge and
perform all the promises, covenants, duties and obligations of the Company
hereunder. In addition, the Company will require any purchaser of all, or
substantially all, of its assets to assume 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 sale of its assets had taken place.
13. Governing Law. This Agreement shall be governed in all
respects, whether as to validity, construction, capacity, performance, or
otherwise, by the laws of the State of New York, excluding only its conflicts of
laws principles.
14. Amendments and Modifications. This Agreement may be
modified only in writing executed by the Company and Employee.
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15. Waiver. Failure to insist upon strict compliance with any
of the terms, covenants or conditions hereof shall not be deemed a waiver of
such term, covenant or condition, nor shall any waiver or relinquishment of, or
failure to insist upon strict compliance with, any right or power hereunder at
any one or more times be deemed a waiver or relinquishment of such right or
power at any other time or times.
16. Severability. In the event that a court of competent
jurisdiction determines that any portion of this Agreement is in violation of
any statute or public policy, then only the portions of this Agreement which
violate such statute or public policy shall be stricken. All portions of this
Agreement which do not violate such statute or public policy continue in full
force and effect. Further, any court order striking any portion of this
Agreement shall modify the stricken terms to give as much effect as possible to
the intentions of the parties under this Agreement.
17. Notices. Any notice, consent, or other communication
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been given three (3) days after the date sent if sent by United
States certified mail, return receipt requested, with proper postage thereon,
one (1) day after the date sent if sent by overnight courier of national
recognition, or when transmitted, if sent by facsimile, and shall be addressed
as follows:
If to the Company: If to Employee:
Predict It, Inc. Xxxxxx X. Xxxxxxx
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx 00 Xxxx 00xx Xxxxxx, Xxx. 00X
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Phone No: (000) 000-0000 Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
or at such other address or addresses as the party addressed may from time to
time designate.
18. Headings; Counterparts. The headings in this Agreement are
solely for the convenience of reference and shall be given no effect in the
construction or interpretation of this Agreement. This Agreement may be executed
in any number of counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have set their signatures
to this Employment Agreement as of the date first written above.
EMPLOYEE PREDICT IT, INC.
________________________________ By: _______________________________
Xxxxxx X. Xxxxxxx Name:
Title:
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EXHIBIT A
NON-COMPETITION AGREEMENT
May __, 1999
Dear Employee:
In consideration and as a condition of your employment by
Predict It, Inc., a Delaware corporation (the "Company"), you hereby covenant
and agree with the Company as follows:
1. The term of this Agreement shall be for a period commencing
on May__, 1999, the date of your initial employment on behalf of the Company,
and ending twelve (12) months following the date on which your employment with
the Company terminates for any reason, whether voluntarily or involuntarily.
2. During the period of your employment with the Company and
during the term hereof, you will not, without the Company's prior written
consent, directly or indirectly, alone or as a partner, joint venturer, officer,
director, employee, consultant, agent, independent contractor or stockholder of
any company or business, solicit engagements with any business entity in the
business of developing, marketing, distributing, or maintaining products or
services competitive with the products or services being developed, marketed,
distributed, planned, sold or otherwise provided by the Company at such time.
The ownership by you of not more than three percent (3%) of the shares of stock
of any corporation having a class of equity securities actively traded on a
national securities exchange or on the NASDAQ Stock Market shall not be deemed,
in and of itself, to violate the prohibitions of this paragraph.
3. During the term hereof, you will not, without the Company's
prior written consent, directly or indirectly, employ, or knowingly permit (to
the extent possible) any other company or business organization which employs
you or is directly or indirectly controlled by you to employ, any person who is
employed by the Company at any time during the term hereof, or in any manner
seek to induce any such person to leave his or her employment with the Company.
4. During the term hereof, you will not, without the Company's
prior written consent, solicit or do business with, directly or indirectly, any
present or past customer of the Company, or any prospective customer of the
Company with whom you have had contact, in connection with any business activity
which would violate any other provision of this Agreement.
5. You hereby represent that, except as attached hereto or as
you have disclosed in writing to the Company, you are not a party to, or bound
by the terms of, any agreement with any previous employer or other party to
refrain from using or disclosing any trade secret or confidential or proprietary
information in the course of your employment with the Company or to refrain from
competing, directly or indirectly, with the business of such previous employer
or any other party.
You further represent that your performance of all the terms of this Agreement,
and as an employee of the Company, does not and will not breach any agreement to
keep in confidence proprietary information, knowledge or data acquired by you in
confidence or in trust prior to your employment with the Company, and you will
not disclose to the Company or induce the Company to use any confidential or
proprietary information or material belonging to any previous employer, or
others.
6. You agree that the breach of this Agreement by you may
cause irreparable damage to the Company and that in the event of such breach the
Company shall have, in addition to any and all remedies of law, the right to an
injunction, specific performance or other equitable relief to prevent the
violation of your obligations hereunder.
7. You understand that this Agreement does not create an
obligation on the Company or any other person or entity to continue your
employment.
8. Any amendment to or modification of this Agreement, and any
waiver of any provision hereof, shall be in writing, executed by both parties.
Any waiver by the Company of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of any subsequent breach hereof.
9. You hereby agree that each provision herein shall be
treated as a separate and independent clause, and the unenforceability of any
one clause shall in no way impair the enforceability of any of the other clauses
herein. Moreover, if one or more of the provisions contained in this Agreement
shall for any reason be held to be excessively broad as to scope, activity, or
subject so as to be unenforceable at law, such provision or provisions shall be
construed by the appropriate judicial body by limiting and reducing it or them,
so as to be enforceable to the maximum extent compatible with the applicable law
as it shall then appear.
10. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, excluding only its conflicts
of laws principles.
11. The term "Company" shall include Predict It, Inc. and any
of its subsidiaries, subdivisions or affiliates. The Company shall have the
right to assign this Agreement to its successors and assigns, and all covenants
and agreements hereunder shall inure to the benefit of and be enforceable by
said successors or assigns.
12. The provisions of this Agreement will not be deemed to
have been violated in the event you participate in, or become an employee of,
any affiliate of the Company. The provisions of this Agreement will not be
deemed to have been violated as a result of any actions taken by you within the
authorized scope of your involvement with any such affiliate.
A-2
Please indicate your acceptance of the foregoing by signing
and returning one copy to the undersigned.
Very truly yours,
PREDICT IT, INC.
By:
----------------------------
Name:
Title:
AGREED TO AND ACCEPTED as of
the date first above written:
EMPLOYEE
-------------------------------
Xxxxxx X. Xxxxxxx
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EXHIBIT B
NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT
In consideration and as a condition of my employment or
continued employment by Predict It, Inc. (the "Company"), I hereby agree with
the Company as follows:
1. I will not at any time, whether during or after the
termination of my employment, reveal to any person or entity any of the trade
secrets or confidential information concerning the organization, business or
finances of the Company which the Company considers to be proprietary and is
able to be protected as a trade secret or confidential information under
applicable law, or of any third party which the Company is under an obligation
to keep confidential (including, but not limited to, trade secrets or
confidential information respecting inventions, products, designs, methods,
know-how, techniques, systems, processes, software programs, application codes,
works of authorship, formulas, algorithms, customer lists, projects, plans and
proposals), except as may be required in the ordinary course of performing my
duties as an employee of the Company, and I shall keep secret all matters
entrusted to me and shall not use or attempt to use any such information in any
manner which may injure or cause loss or may be calculated to injure or cause
loss whether directly or indirectly to the Company or any third party. The
foregoing will not be deemed to prevent my disclosure of information regarding
the Company to the extent such disclosure is required by law or legal process.
In the event I reasonably determine I have a legal obligation to disclose any
information regarding the Company, I agree to immediately notify the Company in
writing, and in any event notify the Company prior to making any such
disclosure. I further agree to cooperate with the Company, at the Company's
request and expense, to seek a protective order or other arrangement protecting
the confidentiality of any information so disclosed.
Further, I agree that during my employment I shall not make,
use or permit to be used any notes, memoranda, reports, lists, records,
drawings, sketches, specifications, software programs, data, documentation or
other materials of any nature relating to any matter within the scope of the
immediately preceding paragraph otherwise than for the benefit of the Company. I
further agree that I shall not, after the termination of my employment, use or
permit to be used any such notes, memoranda, reports, lists, records, drawings,
sketches, specifications, software programs, data, documentation or other
materials, it being agreed that all of the foregoing shall be and remain the
sole and exclusive property of the Company and that immediately upon the
termination of my employment I shall deliver all of the foregoing, and all
copies thereof, to the Company, at its main office.
2. If at any time or times during my employment, I shall
(either alone or with others) make, conceive, create, discover, invent or reduce
to practice any invention, modification, discovery, design, development,
improvement, process, software program, application code, work of authorship,
documentation, formula, algorithm, data, technique, know-how, trade secret or
intellectual property right whatsoever or any interest therein (whether or not
patentable or registrable under copyright, trademark or similar statutes
(including but not limited to the Semiconductor Chip Protection Act) or subject
to analogous protection) (herein called "Developments") that (a) relates
to the business of the Company or any customer of or supplier to the Company or
any of the products or services being developed, manufactured or sold by the
Company or (b) results from tasks assigned to me by the Company, such
Developments and the benefits thereof are and shall immediately become the sole
and exclusive property of the Company and its assigns, as works made for hire or
otherwise, and I shall promptly disclose to the Company (or any persons
designated by it) each such Development and, as may be necessary to ensure the
Company's ownership of such Developments, I hereby assign any rights (including,
but not limited to, any copyrights and trademarks) I may have or acquire in the
Developments and benefits and/or rights resulting therefrom to the Company and
its assigns without further compensation and shall communicate, without cost or
delay, and without disclosing to others the same, all available information
relating thereto (with all necessary plans and models) to the Company.
I understand and am hereby notified that local law may, if
applicable, limit or render inapplicable the preceding provisions in situations
where the Company is not permitted to require that rights be assigned to it.
I will, during my employment and at any time thereafter, at
the request and cost of the Company, promptly sign, execute, make and do all
such deeds, documents, acts and things as the Company and its duly authorized
agents may reasonably require:
(a) to apply for, obtain, register and vest in the name of the
Company alone (unless the Company otherwise directs) letters
patent, copyrights, trademarks or other analogous protection
relating to a Development in any country throughout the world
and when so obtained or vested to renew and restore the same;
and
(b) to defend any judicial, opposition or other proceedings in
respect of such applications and any judicial, opposition or
other proceedings or petitions or applications for revocation
of such letters patent, copyright, trademark or other
analogous protection.
In the event the Company is unable, after reasonable effort,
to secure my signature on any application for letters patent, copyright or
trademark registration or other documents regarding any legal protection
relating to a Development, whether because of my physical or mental incapacity
or for any other reason whatsoever, I hereby irrevocably designate and appoint
the Company and its duly authorized officers and agents as my agent and
attorney-in-fact, to act for and on my behalf and stead to execute and file any
such application or applications or other documents and to do all other lawfully
permitted acts to further the prosecution and issuance of letters patent,
copyright or trademark registrations or any other legal protection thereon with
the same legal force and effect as if executed by me.
3. I agree that any breach of this Agreement by me may cause
irreparable damage to the Company and that in the event of such breach the
Company shall have, in addition to any and all remedies of law, the right to an
injunction, specific performance or other equitable relief to prevent the
violation of my obligations hereunder.
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4. I understand that this Agreement does not create an
obligation on the Company or any other person or entity to continue my
employment.
5. I represent that the Developments identified in the pages,
if any, attached hereto comprise all the unpatented and unregistered
copyrightable Developments which I have made, conceived or created prior to my
employment by the Company, which Developments are excluded from this Agreement.
I understand that it is only necessary to list the title and purpose of such
Developments but not details thereof.
I further represent that my performance of all of the terms of
this Agreement and as an employee of the Company does not and will not breach
any agreement to keep in confidence proprietary information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree I will not enter into, any agreement either written or oral in
conflict herewith.
6. Any waiver by the Company of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach of such provision or any other provision hereof.
7. I hereby agree that each provision herein shall be treated
as a separate and independent clause, and the unenforceability of any one clause
shall in no way impair the enforceability of any of the other clauses herein.
Moreover, if one or more of the provisions contained in this Agreement shall for
any reason be held to be excessively broad as to scope, activity, subject or
otherwise so as to be unenforceable at law, such provision or provisions shall
be construed by the appropriate judicial body by limiting or reducing it or
them, so as to be enforceable to the maximum extent compatible with the
applicable law as it shall then appear.
8. My obligations under this Agreement shall survive the
termination of my employment regardless of the manner of such termination and
shall be binding upon my heirs, executors, administrators and legal
representatives.
9. The term "Company" means Predict It, Inc. and, for purposes
of Section 1, shall also mean and include any of its subsidiaries, subdivisions
or affiliates. The Company shall have the right to assign this Agreement to its
successors and assigns, and all covenants and agreements hereunder shall inure
to the benefit of and be enforceable by said successors or assigns.
10. I understand that provisions of this Agreement will not be
deemed to have been violated in the event I participate in, or become an
employee of, any affiliate of the Company and I am reasonably required in
connection with my involvement with such affiliate to use or disclose trade
secrets or confidential information of the Company protected under this
Agreement.
11. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, excluding only its conflicts
of laws principles.
B-3
IN WITNESS WHEREOF, the undersigned has executed this
Non-Disclosure and Developments Agreement as of May __, 1999.
Name: Xxxxxx X. Xxxxxxx
Address:
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Signature
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