Employment Agreement - EarthWeb Inc. and John Kleine
Employment Agreement
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THIS AGREEMENT, dated January 12, 1998 (the "Agreement"), is between
EarthWeb Inc., a Delaware corporation ("EarthWeb"), and John Kleine (the
"Employee").
In consideration of Employee's employment with EarthWeb, Employee hereby
agrees to be bound by and comply with the following terms and conditions of
employment:
Section 1. At-Will Employment. Employee acknowledges and agrees that
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his/her employment status is that of an employee-at-will and that Employee's
employment may be terminated by EarthWeb or Employee at any time with or without
cause.
Section 2. Compensation. In consideration of the services to be
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rendered hereunder, Employee shall be paid in accordance with the offer letter.
Section 3. Employee Inventions and Ideas.
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(a) Employee will disclose to EarthWeb all Inventions (as herein defined).
"Inventions" shall mean all ideas, potential marketing and sales relationships,
inventions, copyrightable expression, research, plans for products or services,
business development strategies, marketing plans, computer software (including,
without limitation, source code), computer program, original works of
authorship, characters, know-how, trade secrets, information, data,
developments, discoveries, improvements, modifications, technology, algorithms
and designs, whether or not subject to patent or copyright protection, made,
conceived, expressed, developed, or actually or constructively reduced to
practice by Employee solely or jointly with others during the term of Employee's
employment with EarthWeb, which refer to, are suggested by, or result from any
work which Employee may do during his/her employment, or from any information
obtained from EarthWeb or any affiliate of EarthWeb, such that said information
is obtained in the performance of duties related to employment at EarthWeb.
(b) The Inventions shall be the exclusive property of EarthWeb, and
Employee acknowledges that all of said Inventions shall be considered as "work
made for hire" belonging to EarthWeb. To the extent that any such Inventions,
under applicable law, may not be considered work made for hire by Employee for
EarthWeb, Employee agrees to assign and, upon its creation, automatically
assigns to EarthWeb the ownership of such material, including any copyright or
other intellectual property rights in such materials, without the necessity of
any further consideration. EarthWeb shall have the exclusive right to use the
Inventions, whether original or derivative, for all purposes without additional
compensation to Employee. At EarthWeb's expense, Employee will assist EarthWeb
in every proper way to protect the Inventions throughout the world, including,
without limitation, executing in favor of EarthWeb, or any affiliate of
EarthWeb, patent, copyright, and other applications and assignments relating to
the Inventions.
Section 4. Proprietary Information.
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(a) Employee will not disclose or use, at any time either during or after
the term of employment, except at the request of EarthWeb or an affiliate of
EarthWeb, any Confidential Information (as herein defined). "Confidential
Information" shall mean all EarthWeb proprietary information, technical data,
trade secrets, and know-how, including, without limitation, research, product
plans, customer lists, markets, software, developments, inventions, discoveries,
processes, formulas, algorithms, technology, designs, drawings, marketing and
other plans, business strategies and financial data and information, including
but not limited to Inventions, whether or not marked as "Confidential."
"Confidential Information" shall also mean information received by EarthWeb from
customers of EarthWeb or other third parties subject to a duty to keep
confidential.
(b) Employee hereby acknowledges and agrees that all personal property,
including, without
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limitation, all books, manuals, records, reports, notes, contracts, lists,
blueprints, and other documents, or materials, or copies thereof, Confidential
Information, and equipment furnished to or prepared by Employee in the course of
or incident to his employment, including, without limitation, records and any
other materials pertaining to Inventions, belong to EartEarthWeb and shall be
promptly returned to EarthWeb upon termination of employment. Following
termination, the Employee will not retain any written or other tangible or
electronic material containing any Confidential Information or information
pertaining to any Invention.
Section 5. Limited Agreement Not to Compete.
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(a) While employed by EarthWeb, Employee shall not, directly or indirectly,
as an employee, employer, consultant, agent, principal, partner, manager,
stockholder, officer, director, or in any other individual or representative
capacity, engage or participate in any business that is competitive with the
business of EarthWeb. Notwithstanding the foregoing, Employee may own less than
two percent (2%) of any class of stock or security of any corporation which
competes with EarthWeb listed on a national securities exchange.
(b) While employed by EarthWeb and for a period of twelve (12) months after
the termination of Employee's employment with EarthWeb, Employee shall not,
directly or indirectly, solicit for employment or employ any person who (i) at
the time of such solicitation or offer is currently employed by EarthWeb or (ii)
has been employed by EarthWeb within three months of such solicitation or offer.
(c) For a period of twelve (12) months after the termination of Employee's
employment with EarthWeb, Employee shall not, directly or indirectly:
(1) work as an employee, employer, consultant, agent, principal, partner,
manager, officer, director, or in any other individual or representative
capacity for any person or entity that directly competes with EarthWeb. For
the purpose of this section, the term "directly competing" is defined as a
person or entity or division of an entity that is
(i) an on-line service for Information Technology Professionals whose
primary business is to provide Information Technology Professionals
with a directory of third party technology, software, and/or developer
resources; and/or an online reference library, and/or:
(ii) an on-line store, the primary purpose of which is to sell or
distribute third party software or products used for Internet site or
software development; or
(2) take away exclusively from EarthWeb for Employee (or for any other
person or entity) or any person or entity who or which was an advertiser of
EarthWeb during the Employee's employment at EarthWeb, or
Section 6. EarthWeb Resources. Employee may not use any EarthWeb
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equipment for personal purposes without written permission from EarthWeb.
Employee may not give access to EarthWeb's offices or files to any person not in
the employ of EarthWeb without written permission of EarthWeb.
Section 7. Injunctive Relief. Employee agrees that the remedy at law
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for any breach of the provisions of Section 3, Section 4 or Section 5 of this
Agreement shall be inadequate and EarthWeb shall be entitled to injunctive
relief in addition to any other remedy at law which EarthWeEarthWeb may have.
Section 8. Severability. In the event any of the provisions of this
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Agreement shall be held by a court, arbitrator or other tribunal of competent
jurisdiction to be unenforceable or invalid, that part will be amended to
achieve as nearly as possible the same effect and the other provisions of this
Agreement shall remain in full force and effect.
Section 9. Survival. In the event of termination of this Agreement, the
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provisions of Sections 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 shall
survive.
Section 10. Representations and Warranties. Employee represents and
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warrants that Employee is not under any obligations to any third party which
could interfere with the Employee's performance under this Agreement, and that
Employee's performance of his/her obligations to EarthWeb during the term of
his/her employment with EarthWeb will not breach any agreement by which Employee
is bound not to disclose any proprietary information including, without
limitation,
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that of former employers.
Section 11. Governing Law. The validity, interpretation,
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enforceability, and performance of this Agreement shall be governed by and
construed in accordance with the laws of the State of New York, exclusive of its
choice of law rules.
Section 12. Dispute Resolution. Except for disputes relating to or
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arising out of Sections 3, 4, 5 and/or 7 of this Agreement, any dispute relating
to or arising out of Employee's employment at EarthWeb, which cannot be resolved
by negotiation, shall be settled by binding arbitration in accordance with the
AAA Employment Dispute Arbitration Rules and Procedures, as amended by this
Agreement. Employment disputes include, but are not limited to, all claims,
demands or actions under Title VII of the Civil Rights Act of 1964, Civil Rights
Act or 1866, Civil Rights Act of 1991 and all amendments to the aforementioned,
and any other federal, state, or local statute or regulation or common law
regarding employment discrimination in employment or the termination of
employment. The costs of arbitration, including the fees and expenses of the
arbitrator, shall be shared equally by the parties. Each party shall bear the
cost of preparing and presenting its case. The arbitration shall take place in
the Borough of Manhattan, in the City of New York, in the State of New York.
The arbitration shall be conducted in strict confidence. In no event shall the
arbitrator have the authority to make any award that provides for punitive or
exemplary damages or attorneys' fees. The arbitrator's decision shall be based
upon the substantive law of the State of New York. The arbitrator's decision
shall follow the plain meaning of the relevant documents, and shall be final and
binding. The award may be confirmed and enforced in any court of competent
jurisdiction. The parties hereby agree that any federal or state court sitting
in New York City in the State of New York is a court of competent jurisdiction.
This paragraph does not limit EarthWeb's right to seek monetary damages and
injunctive relief in any state or federal court sitting in the New York City in
the State of New York (jurisdictional, venue and inconvenient forum objections
to which are hereby waived by both parties) in the event that a dispute relates
to or arises under Sections 3, 4 or 5 of this Agreement.
Section 13. Modification. EarthWeb reserves the right to modify the
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terms of this Agreement on a quarterly basis, subject to notice and
acknowledgment by the Employee of such modifications. Notice of any such
modifications shall be presented to the Employee for acknowledgment and shall be
attached as Schedule A.
Section 14. General. This Agreement supersedes and replaces any
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existing agreement entered into by Employee and EarthWeb relating generally to
the same subject matter, and may be modified only in a writing signed by
EarthWeb. Failure to enforce any provision of the Agreement shall not
constitute a waiver of any term herein. This Agreement contains the entire
agreement between the parties with respect to the subject matter herein.
AGREED TO BY:
EARTHWEB INC. EMPLOYEE
By: /s/ Juliet Clapp By: /s/ John Kleine
Title: Director, Human Resources Title: Vice President, Systems and
Operations