EXHIBIT 10.31
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made as of March 15, 2000, but
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is only effective as of the Effective Date (as defined below), by and among
XxxxxxXxxxxxx.xxx, a Delaware corporation ("HCC"), Xxxxxxxx.xxx, Inc., a
Delaware corporation ("VC"), and Xxxxxx X. Xxxx ("Employee").
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BACKGROUND
This Agreement is entered into in connection with and is ancillary to an
Agreement and Plan of Reorganization and Merger (the "Plan"), dated as of March
----
15, 2000 among HCC, Acquisition Corp., a Delaware corporation and wholly owned
subsidiary of HCC ("Acquisition Corp"), and VC, pursuant to which Acquisition
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Corp is to merge with and into VC (the "Merger"), VC will continue as the
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surviving corporation in the merger, and the shares of VC capital stock
outstanding immediately prior to the effective time of the merger will be
converted into shares of HCC Common Stock. The date on which the Merger becomes
effective will be the effective date of this Agreement (the "Effective Date").
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In consideration for HCC's entering into and performing under the Plan,
Employee has agreed to concurrently enter into the Confidentiality Agreement and
the Non-Competition Agreement (as provided in Section 5).
VC and HCC are sometimes together referred to herein as the "Company".
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
of the parties contained herein, HCC and Employee hereby agree as follows:
1. Duties. Employee will be employed as a full-time employee of HCC and
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initially will serve as its President of VC, and agrees to perform such services
as are commensurate with such a position and as may be reasonably required or
directed by the Chief Executive Officer of HCC. Employee agrees to perform such
other duties and responsibilities, commensurate with Employee's position, as may
be reasonably required of him by the Chief Executive Officer of HCC. Employee
agrees that, to the best of Employee's ability and experience, Employee will at
all times conscientiously perform all of the duties and obligations assigned to
Employee in accordance with this Agreement.
2. Full-Time Employment. Employee's employment will be on a full-time
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basis, in accordance with standard employee policies for HCC. Except for such
activities, if any, as may be set forth in Schedule 1 attached hereto or as may
hereafter be consented to by HCC in its sole discretion, during Employee's
employment hereunder, Employee will not engage in any other business or render
any commercial or professional services, directly or indirectly, to any other
person or organization, whether for compensation or otherwise, provided that
Employee may (i) provide incidental assistance to family members on matters of
family business, and (ii) sit on the boards of charitable and nonprofit
organizations which do not compete with HCC, provided in each case that such
activities do not conflict with or materially interfere with Employee's
obligations to HCC. Employee may make personal investments in nonpublicly traded
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corporations, partnerships or other entities, which are not engaged in: (i) a
pharmacy or retail drugstore business (including but not limited to a business
involved in the provision of prescription, over-the-counter and health and
beauty products) that operates interactively via electronic media, including
over the Internet or (ii) a business, other than a manufacturing business, that
provides health information, products and services directly to the general
public (including linkages between consumers and health providers, payors and
ancillary entities) in various communications media, including but not limited
to radio, television, Internet, interactive television, interactive cable and
satellite (the foregoing description of business activities and markets shall be
referred to in this Agreement as "Competitive Businesses"). Notwithstanding
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anything to the contrary contained in this Agreement, Employee may make personal
investments in publicly traded corporations regardless of the business they are
engaged in, provided that Employee does not at any time own in excess of 1% of
the issued and outstanding stock of any such publicly traded corporation that is
engaged in any Competitive Businesses.
3. Place of Employment. During the term of employment, Employee shall
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render his services principally at the principal executive offices of the
Company, as mutually agreed. In addition, Employee shall do such traveling as
shall be reasonably necessary in connection with his duties and responsibilities
hereunder.
4. Compensation.
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(a) Salary. Employee's initial monthly base salary rate shall be
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$12,500 per month (the "Monthly Base Salary") ($150,000 on an annualized basis),
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subject to review and increase from time to time thereafter in accordance with
the Company's policies. Such salary shall be paid in accordance with the
Company's normal payroll practices.
(b) Business Expenses. The Company shall reimburse Employee for all
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reasonable business expenses incurred by Employee in the course of performing
services for the Company under this Agreement in accordance with the Company's
then existing policy relating to reimbursement of business expenses for the
Company's employees.
(c) Other Benefits. Employee will be entitled to participate in or
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receive benefits commensurate with Employee's position and those of similarly
situated employees of HCC in accordance with HCC's standard employee policies in
effect from time to time. HCC may change, amend, modify or terminate any
benefit plan from time to time.
(d) Withholding, Etc. The Company may make such deductions,
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withholdings and other payments from all sums payable pursuant to this Agreement
which are required by law or as Employee requests in writing for taxes and other
charges.
(e) Vacation. Employee shall be entitled to no less than three weeks
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of paid vacation or personal time off during each full calendar year of his
employment hereunder (and a pro rata portion thereof for any period of such
employment that is less than a full calendar year) or such greater amount of
vacation, personal and other leave as HCC provides to similarly situated
employees of HCC.
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5. Confidentiality. Simultaneously with the execution of this Agreement,
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Employee is executing and delivering and hereby adopts and agrees to be bound by
the form of Confidential Information and Invention Assignment Agreement attached
hereto as Schedule 2 (the "Confidentiality Agreement").
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6. Termination. Employee's employment with the Company will be on an "at
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will" basis, which means that either Employee or HCC may terminate Employee's
employment at any time for any reason or no reason, without further obligation
or liability, subject to the terms and conditions of this Agreement. Except in
the case of Employee's fraud or theft or misappropriation of Company property,
the Company's sole recourse against Employee for breaches under this Agreement
shall be to exercise its right to terminate Employee's employment with the
Company. In particular,
(a) Employee's employment shall terminate upon the death of Employee.
(b) The Company may terminate Employee's employment by written notice
to Employee in the event Employee is unable, for a period of three or more
consecutive months or 150 calendar days during any consecutive twelve-month
period, due to illness, accident or other physical or mental incapacity, to
perform his duties hereunder.
(c) The Company may terminate Employee's employment for "Cause" (as
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defined below) by written notice to Employee.
(d) The Company may terminate Employee's employment for any other
reason by written notice to Employee.
(e) Employee may terminate Employee's employment for any reason at
any time by written notice to the Company.
(f) The Confidentiality Agreement, the Non-Competition Agreement
executed by the Employee concurrently herewith and Sections 5, 6, 7, 8 and 9 of
this Agreement shall survive the termination of this Agreement as a result of
the termination of Employee's employment for any reason.
7. Definition of "Cause." As used in this Agreement, the term "Cause"
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shall mean:
(a) Employee personally engaging in knowing and intentional illegal
conduct which is seriously injurious to HCC or its affiliates;
(b) Employee being convicted of a felony, or committing a material
act of dishonesty or fraud against, or the material misappropriation of property
belonging to, HCC or its affiliates;
(c) Employee habitually neglecting his duties hereunder,
(d) Employee knowingly and intentionally breaching any material term
of this Agreement, the Confidentiality Agreement or the Noncompetition Agreement
executed by the
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Employee concurrently herewith (the "Noncompetition Agreement");
(e) Employee's commencement of employment with another employer while
he is an employee of HCC; or
(f) any material breach by Employee of any material provision of this
Agreement or the Confidentiality Agreement or the Non-Competition Agreement
executed by the Employee concurrently herewith which continues uncured for
thirty (30) days following notice thereof.
8. Severance Payment. If HCC terminates Employee's employment pursuant
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to Section 6(d) during the period beginning on the Effective Date and ending one
year thereafter (the "Severance Period"), then HCC will pay Employee on a
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monthly basis and at a monthly rate the Monthly Base Salary for the greater of
(i) six (6) months or (ii) each month remaining in the Severance Period (subject
to proration for any partial month so remaining), subject to Employee's
continued compliance with all the terms of the Confidentiality Information and
the Non-Competition Agreement and the surviving terms of this Agreement, and
provided, however, that if Employee begins rendering services as an employee or
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consultant in excess of thirty (30) hours per week to any person or entity
during the Severance Period and receives salary for such services, then the
Company will cease making such severance payments at such time. Employee has no
obligation to seek employment during the Severance Period.
9. Miscellaneous.
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(a) Notices. Any and all notices permitted or required to be given
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under this Agreement must be in writing. Notices will be deemed given (i) when
personally received or when sent by facsimile transmission (as evidenced by the
sender's confirmation receipt), (ii) on the first business day after having been
sent by commercial overnight courier with written verification of receipt, or
(iii) seventy-two (72) hours after having been sent by registered or certified
mail from a location on the United States mainland, return receipt requested,
postage prepaid, whichever occurs first, at the address set forth below or at
any new address, notice of which will have been given in accordance with this
Section 9(a):
If to HCC:
XxxxxxXxxxxxx.xxx
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Chief Executive Officer
If to Employee:
Xxxxxx X. Xxxx
0000 Xxxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
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with a copy to:
Venable, Baetjer, Xxxxxx and Civiletti, LLP
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxx X. Xxxxxxxxxxx
Tel. No. (000) 000-0000
Facsimile No. (000) 000-0000
(b) Entire Agreement; Amendments. This Agreement, the Confidentiality
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Agreement and the Noncompetition Agreement contain the entire agreement and
supersede and replace all prior agreements between HCC or Company and Employee
concerning the subject matter contained in this Agreement. This Agreement may
not be changed or modified in whole or in part except by a writing signed by the
party against whom enforcement of the change or modification is sought.
(c) Successors and Assigns. This Agreement will not be assignable by
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either Employee or HCC, except that the rights and obligations of HCC under this
Agreement may be assigned to a corporation which becomes the successor or HCC to
HCC or Company as the result of a merger or other change of control in the
ownership of HCC or Company.
(d) Governing Law. This Agreement will be governed by and
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interpreted according to the substantive laws of the State of Delaware without
regard to such state's conflicts law. Each party hereto agrees to submit to the
jurisdiction of the state and Federal courts located within the State of
Delaware and agrees that venue for any dispute hereunder shall lie exclusively
in such courts.
(e) No Waiver. The failure of either party to insist on strict
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compliance with any of the terms of this Agreement in any instance or instances
will not be deemed to be a waiver of any term of this Agreement or of that
party's right to require strict compliance with the terms of this Agreement in
any other instance.
(f) Severability. Employee and HCC recognize that the limitations
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contained herein are reasonably and properly required for the adequate
protection of the interests of HCC. If for any reason a court of competent
jurisdiction or binding arbitration proceeding finds any provision of this
Agreement, or the application thereof, to be unenforceable, the remaining
provisions of this Agreement will be interpreted so as best to reasonably effect
the intent of the parties. The parties further agree that the court or
arbitrator shall replace any such invalid or unenforceable provisions with valid
and enforceable provisions designed to achieve, to the extent possible, the
business purposes and intent of such unenforceable provisions.
(g) Counterparts. This Agreement may be executed in counterparts
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which when taken together will constitute one instrument. Any copy of this
Agreement with the original signatures of all parties appended will constitute
an original.
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(h) Attorneys' Fees. In the event any dispute arises hereunder the
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court shall have the authority to award costs and attorneys' fees to the
prevailing party.
IN WITNESS WHEREOF, this Agreement is made and effective as of the
Effective Date.
XXXXXXXXXXXXX.XXX EMPLOYEE
By:___________________________ ________________________
Title:________________________ XXXXXX X. XXXX
XXXXXXXX.XXX, INC.
By: _________________________
Title:________________________
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SCHEDULE 1
PERMITTED ACTIVITIES
Xxxxxx X Xxxx Insurance Trust 1986
RMH Investment Associates LLC
XXXXXX XXXX CAPITAL L.L.C.
XXXXXX XXXX GROUP L.L.C.
Home Health L.L.C
Xxxxxxxxx Xxxxx LLC
Xxxxx Xxxxxxxx LLC
Xxxxxxxx Xxxxxx LLC
Xxxxxxxxxxxx.xxx
Xxxxxxxxx.xxx
Intrepid Connecticut Ave. L.L.C.
Intrepid C Street L.L.C.
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SCHEDULE 2
CONFIDENTIALITY AGREEMENT
8
SCHEDULE 2
XXXXXXXXXXXXX.XXX
CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT AGREEMENT
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In exchange for my becoming employed (or my employment being continued), or
retained as a consultant or director (or my consulting or director relationship
being continued), by XxxxxxXxxxxxx.xxx or its subsidiaries, affiliates, or
successors (collectively, the "Company"), I hereby agree as follows:
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1. Duties. I will perform for the Company such duties as may be
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designated by the Company from time to time. During my period of employment or
consulting relationship with the Company, I will devote my best efforts to the
interests of the Company and will not engage in other employment or in any
activities detrimental to the best interests of the Company without the prior
written consent of the Company.
2. At-Will Relationship. If I am an employee or consultant, I understand
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and acknowledge that my employment or consulting relationship with the Company
is and shall continue to be at-will, as defined under applicable law, meaning
that either I or the Company may terminate the relationship at any time for any
reason or no reason, without further obligation or liability.
3. Inventions. As used in this Confidential Information and Inventions
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Assignment (this "Agreement"), the term "Inventions" means designs, trademarks,
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discoveries, formulae, processes, manufacturing techniques, trade secrets,
inventions, developments, original works of authorship, concepts, know-how,
improvements, and ideas, whether or not patentable or registrable under
copyright or similar laws, including all rights to obtain, register, perfect and
enforce these proprietary interests.
4. Confidential Information. As used in this Agreement, the term
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"Confidential Information" means information pertaining to any aspects of the
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Company's business or the business of Xxxxxxxx.xxx, Inc. ("VC Corporation"),
including but not limited to its research, technical data, products, services,
plans for products or services, customers and potential customers, markets and
marketing, finances, financial projections, employees (including employee
compensation), patents, patent applications, developments, inventions,
processes, designs, drawings, engineering, formulae, scientific or other
information, business plans, and agreements with third parties, disclosed to me
by the Company or VC Corporation either directly or indirectly in writing,
orally or by drawings or observation of parts or equipment, or created by me
during the period of my employment, consulting or director relationship with the
Company or VC Corporation, whether or not during working hours, and directly
related to the Company's business.
5. Assignment of Inventions. Without further compensation, I hereby
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agree promptly to disclose to the Company, and I hereby assign and agree to
assign to the Company or its designee, my entire right, title, and interest
throughout the world in and to all Inventions and all intellectual property
rights thereto that I may solely or jointly conceive, develop or reduce to
practice during the period of my employment, consulting or director relationship
with the Company or VC Corporation (whether commenced prior to or upon the date
of this Agreement), whether or not during working hours, except as provided in
Section 10. Without limiting the foregoing, if I am a consultant, any Inventions
that would otherwise be assigned pursuant to this Section 5 and which constitute
copyrightable subject matter shall be deemed "works made for hire" as that term
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is defined in the United States Copyright Act. No rights are hereby conveyed in
the Inventions listed on Exhibit A hereto, which relate to the Company's
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business
or the business of VC Corporation and which were made by me prior to my
employment, consulting or director relationship with VC Corporation.
6. Further Assistance; Power of Attorney. I agree to perform, during and
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after my employment, consulting or director relationship, all acts deemed
necessary or desirable by the Company to permit and assist it, at its expense,
in obtaining and enforcing the full benefits, enjoyment, rights and title
throughout the world in the Inventions and all intellectual property rights
thereto assigned to the Company as set forth in Section 5 above. Such acts may
include, but are not limited to, the disclosure to the Company of all
information relating thereto, the execution of documents and assistance or
cooperation in legal proceedings. I hereby waive and irrevocably quitclaim to
the Company any and all claims, of any nature whatsoever, that I now or
hereafter have for infringement of any and all proprietary rights assigned to
the Company.
7. Confidentiality Obligation. I agree to hold in confidence and not
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directly or indirectly to use or disclose to any third person or entity, either
during or after termination of my employment, consulting or director
relationship with the Company, any Confidential Information I obtain or create
during the period of my employment, consulting or director relationship with the
Company or VC Corporation (whether commenced prior to or upon the date of this
Agreement), whether or not during working hours, except to the extent authorized
by the Company or required by applicable law (in which event I will provide
prompt notice to the Company), until such Confidential Information becomes
generally known by the public. I agree not to make copies of such Confidential
Information except as authorized by the Company or required by applicable law
(in which event I will provide prompt notice to the Company). Upon termination
of my employment, consulting or director relationship or upon an earlier request
of the Company, I will return or deliver to the Company all tangible forms of
such Confidential Information in my possession or control, including but not
limited to drawings, specifications, documents, records, devices, models or any
other material and copies or reproductions thereof.
8. No Conflicts. I represent that my performance of all the terms of
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this Agreement and my provision of services as an employee or director of or
consultant to the Company or VC Corporation has not and will not breach any
agreement to keep in confidence proprietary information, knowledge or data
acquired by me in confidence or in trust prior to my becoming an employee,
consultant or director of the Company or VC Corporation, and I will not disclose
to the Company or VC Corporation, or induce the Company or VC Corporation to
use, any confidential or proprietary information or material belonging to any
previous employer or others. I agree not to enter into any written or oral
agreement that conflicts with the provisions of this Agreement.
9. Effects of Agreement. This Agreement (a) shall survive my employment
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by or consulting or director relationship with the Company or VC Corporation,
(b) does not in any way restrict my right or the right of the Company to
terminate my employment or consulting relationship, with or without cause, (c)
inures to the benefit of successors and assigns of the Company, and (d) is
binding upon my heirs and legal representatives. This Agreement is subject to
the terms of my Employment Agreement with the Company, which shall control in
the event of any conflict.
10. Inventions. This Agreement does not apply to an Invention that would
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qualify fully under the provisions of Exhibit B.
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11. No Interference. I certify that, to the best of my information and
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belief, I am not a party to any other agreement which will interfere with my
full compliance with this Agreement.
12. Solicitation of Employees, Consultants and Other Parties. I agree
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that during the term of my employment, consulting or director relationship with
the Company or VC Corporation, and for the period of 12 months immediately
following the termination of my relationship with the Company or VC Corporation
for any reason, I shall not directly or indirectly solicit, induce, recruit or
encourage any of the Company's employees or consultants to terminate their
relationship with the Company, or attempt any of the foregoing, either for
myself or any other person or entity. For the period of 12 months immediately
following termination of my relationship with the Company or VC Corporation for
any reason, I shall not solicit any licensor to or customer of the Company or VC
Corporation or licensee of the Company's or VC Corporation's products or
services, that are known to me, with respect to any business, products or
services that are directly competitive to the products or services offered by
the Company or VC Corporation or under development in the division of the
Company or VC Corporation in which I am employed or, to my knowledge, are under
development outside such division as of the date of termination of my
relationship with the Company or VC Corporation; provided, however, that nothing
contained in this Agreement shall be construed to prohibit me from soliciting
the general public.
13. Miscellaneous. This Agreement supersedes any oral, written or other
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communications or agreements concerning the subject matter of this Agreement,
and may be amended or waived only by a written instrument signed by the parties.
This Agreement shall be governed by the laws of the State of Delaware applicable
to contracts entered into and performed entirely within the State, without
giving effect to principles of conflict of laws. If any provision of this
Agreement is held to be unenforceable under applicable law, then such provision
shall be excluded from this Agreement only to the extent unenforceable, and the
remainder of such provision and of this Agreement shall be enforceable in
accordance with its terms. The parties agree to submit to the exclusive
jurisdiction of the federal and state courts located within the State of
Delaware and agree that venue shall lie exclusively within such courts.
14. Acknowledgment. I certify and acknowledge that I have carefully read
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all of the provisions of this Agreement and that I understand and will fully and
faithfully comply with such provisions.
XXXXXXXXXXXXX.XXX
By: _____________________ ________________________________________________
Name:________________ Signature of Employee, Consultant or Director
Title:_______________
Dated: ______________, ____ ________________________________________________
Name of Employee, Consultant or Director (print)
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EXHIBIT A
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LIST OF PRIOR INVENTIONS
AND ORIGINAL WORKS OF AUTHORSHIP
EXCLUDED FROM SECTION 5
Identifying Number
Title Date or Brief Description
----------- -------- ----------------------
See list set forth in Schedule 1 to the Employment Agreement to which this
Schedule 2 is attached.
___ No inventions or improvements
___ Additional Sheets Attached
Signature: _____________________________
Print Name: ____________________________
Date: __________________________________
EXHIBIT B
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(a) Sections 4, 5 and 7 of the Agreement shall not apply to an invention
that the Employee developed entirely on his own time without using the Company's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice of the
invention to the Company's business, or actual or demonstrably anticipated
research or development of the Company.
(2) Result from any work performed by the Employee for the Company.
(b) To the extent a provision in the Agreement purports to require
Employee to assign an invention otherwise excluded from being required to be
assigned under subdivision (a), the provision is void and unenforceable.
SCHEDULE 3
NONCOMPETITION AGREEMENT
NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT (this "Agreement") is made as of the 15/th/
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day of March, 2000 by and between XxxxxxXxxxxxx.xxx, a Delaware corporation
("HCC") and Xxxxxx X. Xxxx ("Key Employee").
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BACKGROUND
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This Agreement is entered into in connection with and is ancillary to an
Agreement and Plan of Reorganization and Merger (the "Plan"), dated as of March
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15, 2000 among HCC, HCC Acquisition Corp., a Delaware corporation and wholly
owned subsidiary of HCC ("Acquisition Corp"), and Xxxxxxxx.xxx, Inc., a Delaware
----------------
corporation (the "Company"), pursuant to which Acquisition Corp is to merge with
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and into Company (the "Merger") and Company will continue as the surviving
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corporation in the Merger, and the shares of Company capital stock outstanding
immediately prior to the effective time of the Merger will be converted into
shares of HCC Common Stock.
Key Employee is a stockholder of Company and has been actively involved in
the development and/or marketing of the Company's products and services. HCC
intends to continue the business of Company after the Merger and integrate such
business into HCC's ongoing business as a subsidiary of HCC. To preserve and
protect the assets of Company and HCC, including HCC's goodwill, customers and
trade secrets of which Key Employee has and will have knowledge in his or her
role as an employee, and in consideration for HCC's entering into and performing
under the Employment Agreement with Key Employee of even date herewith, Key
Employee has agreed to enter into this Agreement.
Key Employee and HCC believe the limitations as to time, geographical area
and scope of activity contained in this Agreement hereof are reasonably
necessary to, and no greater than that required to, protect the goodwill and
business interests of HCC.
1. For the period beginning on the date on which Key Employee no
longer is an employee of or consultant to HCC (the "Effective Date") and ending
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on the one-year anniversary of the Effective Date, Key Employee will not, in the
geographical areas referred to in Section 2 below, individually or as an
employee, consultant, partner, officer, director or shareholder or in any other
capacity whatsoever of or for any person, firm, partnership, or corporation
other than HCC or its subsidiaries, work as an employee or consultant, or own,
manage, operate, sell, control or participate in the ownership, management,
operation, sales or control of, any business engaged in the following (the
following being hereinafter referred to as the "Restricted Business"): (i) a
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pharmacy or retail drugstore business (including but not limited to a business
involved in the provision of prescription, over-the-counter and health and
beauty products) that operates interactively via electronic media, including
over the Internet, or (ii) a business that provides health information, products
and services to the general public (including linkages between consumers and
health providers, payors and ancillary entities) in various communications
media, including but not limited to radio, television, internet, interactive
television, interactive cable and satellite; provided, however, that the
foregoing shall not prohibit
Key Employee from providing services to (a) a business or a division of a
business that is not engaged in the activities described in (i) and (ii) above
(a "Permitted Business Unit") even though another division or affiliate of the
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business is engaged in such activities, provided that Key Employee's duties and
responsibilities exclusively relate to the Permitted Business Unit or (b) a
business engaged in the activities described in (i) and (ii) above, so long as
Key Employee is not directly engaged in or responsible for activities that would
constitute a Restricted Business, or (c) a primarily "bricks and mortar"
business which derives less than 15% of its revenue from the activities
described in (i) and (ii) above ((a), (b) and (c) being collectively referred to
as "Permitted Businesses"). Notwithstanding the foregoing or anything to the
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contrary contained in this Agreement, (a) Key Employee may make personal
investments in nonpublicly traded corporations, partnerships or other entities,
which are not engaged in the Restricted Business, unless they are Permitted
Businesses, and (b) Key Employee may make personal investments in publicly
traded corporations regardless of the business they are engaged in, provided
that Employee does not at any time own in excess of 1% of the issued and
outstanding stock of any such publicly traded corporation that is engaged in the
Restricted Business, unless they are Permitted Businesses. For purposes of
illustrating the foregoing, Key Employee would not be precluded from employment
with Xxxxxx.xxx so long as Key Employee was not directly engaged in or
responsible for any business of Xxxxxx.xxx that is a Restricted Business. Key
Employee also would not be precluded from employment with Target Stores so long
as Target Stores does not derive more than 15% of its revenues from Restricted
Businesses.
2. The geographical areas in which the restrictions provided for in
this Agreement apply include all cities, counties and states of the United
States, and all other countries in which HCC or Company has engaged in sales or
otherwise conducted business or selling or licensing efforts in any aspect of
the Restricted Business at any time prior hereto or during the term of this
Agreement. Key Employee acknowledges that the scope and period of restrictions
and the geographical area to which the restrictions imposed in this Section 2
applies are fair and reasonable and are reasonably required for the protection
of HCC and that this Agreement accurately describes the business to which the
restrictions are intended to apply.
3. Key Employee acknowledges that any breach of the covenants of
this Agreement will result in immediate and irreparable injury to HCC and,
accordingly, consents to the application of injunctive relief and such other
equitable remedies for the benefit of HCC as may be appropriate in the event
such a breach occurs or is threatened. The foregoing remedies will be in
addition to all other legal remedies to which HCC may be entitled hereunder,
including, without limitation, monetary damages.
4. Miscellaneous.
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(a) Notices. Any and all notices permitted or required to be
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given under this Agreement must be in writing. Notices will be deemed given (i)
when personally received or when sent by facsimile transmission (to the
receiving party's facsimile number), (ii) on the first business day after having
been sent by commercial overnight courier with written verification of receipt,
or (iii) on the third business day after having been sent by registered or
certified mail from a location on the United States mainland, return receipt
requested, postage
2
prepaid, whichever occurs first, at the address set forth below or at any new
address, notice of which will have been given in accordance with this Section
4(a):
If to HCC:
XxxxxxXxxxxxx.xxx
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: C. Xxxx Xxxxx
If to Key Employee:
Xxxxxx X. Xxxx
0000 Xxxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
with a copy to:
Venable, Baetjer, Xxxxxx and Xxxxxxxxx, LLP
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxx X. Xxxxxxxxxxx
Tel. No. (000) 000-0000
Facsimile No. (000) 000-0000
(b) Amendments. This Agreement, along with the Confidential
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Information and Invention Assignment Agreement between HCC and Key Employee
dated concurrently herewith (the "Confidentiality Agreement") and the Employment
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Agreement between HCC and Key Employee dated concurrently herewith (the
"Employment Agreement"), contains the entire agreement and supersedes and
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replaces all prior agreements between Key Employee and Company or HCC concerning
the subject matter of this Agreement. This Agreement may not be changed or
modified in whole or in part except by a writing signed by the party against
whom enforcement of the change or modification is sought.
(c) Successors and Assigns. This Agreement will not be assignable by
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either Key Employee or HCC, except that the rights and obligations of HCC under
this Agreement may be assigned to a corporation which becomes the successor to
HCC or Company as the result of a merger or other change of control in the
ownership of HCC or Company.
(d) Governing Law. This Agreement will be governed by and
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interpreted according to the substantive laws of the State of Delaware without
regard to such state's conflicts law. Each party hereto agrees to submit to the
jurisdiction of the state and Federal courts located within the State of
Delaware and agrees that venue for any dispute hereunder shall lie exclusively
in such courts.
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(e) No Waiver. The failure of either party to insist on strict
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compliance with any of the terms of this Agreement in any instance or instances
will not be deemed to be a waiver of any term of this Agreement or of that
party's right to require strict compliance with the terms of this Agreement in
any other instance.
(f) Severability. It is the intent of the parties that the
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provisions of this Agreement will be enforced to the fullest extent permissible
under applicable law. Key Employee and HCC recognize that the limitations
contained herein are reasonably and properly required for the adequate
protection of the interests of HCC. If for any reason a court of competent
jurisdiction or binding arbitration proceeding finds any provision of this
Agreement, or the application thereof, to be invalid or unenforceable, this
Agreement will be deemed amended to revise that provision or portion to the
minimum extent necessary to render it enforceable. Such amendment will apply
only with respect to the operation of this paragraph in the particular
jurisdiction in which such adjudication was made, and the remaining provisions
of this Agreement will be interpreted so as best to reasonably effect the intent
of the parties. The parties further agree that the court or arbitrator shall
replace any such invalid or unenforceable provisions with valid and enforceable
provisions designed to achieve, to the extent possible, the business purposes
and intent of such unenforceable provisions.
(g) Counterparts. This Agreement may be executed in counterparts
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which when taken together will constitute one instrument. Any copy of this
Agreement with the original signatures of all parties appended will constitute
an original.
(h) Attorneys' Fees. In the event any dispute arises under this
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Agreement, the court shall have the authority to award costs and attorneys' fees
to the prevailing party.
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IN WITNESS WHEREOF, this Agreement is made and effective as of the date
above written.
XXXXXXXXXXXXX.XXX KEY EMPLOYEE
By: _______________________________ ________________________________
Its: _______________________________ XXXXXX X. XXXX
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