EMPLOYMENT, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT
Exhibit
10.6
This
EMPLOYMENT, NON-DISCLOSURE NON-COMPETITION AGREEMENT (this “Agreement”) is made
and entered into as of May 26, 2006 (the “Effective Date”), by and between
INTERACTIVE INTELLIGENCE, INC., an Indiana corporation having its principal
place of business in Indianapolis, Indiana ("Interactive"), and Xxxx X.
Xxxxxx (“Employee”).
Recitals
A.
For
purposes of this Agreement, the term the
“Company” means Interactive and/or each of its direct or indirect subsidiaries
(including, without limitation, Vonexus, Inc.) and/or any affiliate entity
in
which Interactive directly or indirectly owns a controlling interest or that
Interactive otherwise controls provided that Employee is employed by, provides
services for the benefit of, or receives or has access to confidential
information concerning such subsidiary or affiliate at any time from the date
of
this Agreement until Employee is no longer employed with any Interactive-related
entity.
B.
Employee
desires to be employed or to continue to be employed by the Company. The Company
desires to employ or to continue to employ Employee provided it is afforded
the
protections of this Agreement. In the course of Employee’s employment by the
Company, Employee (i) will have access to and will acquire certain trade secrets
and confidential information of the Company, (ii) may create inventions,
developments or works relating to the Company’s business and (iii) will
help develop and maintain goodwill with the Company’s customers.
C.
To
induce
the Company to employ or to continue to employ Employee and give Employee access
to certain of the Company’s trade secrets, confidential information and customer
relationships, Employee is willing to enter into this Agreement for the
protection of the Company’s trade secrets, confidential information,
intellectual property and goodwill.
Agreement
In
consideration of the foregoing recitals, the Company’s employment of Employee,
and the promises and covenants contained in this Agreement, Interactive and
Employee agree as follows:
1.
Employment.
Pursuant
to the terms and conditions of this Agreement, the Company agrees to employ
Employee and Employee agrees to be employed by the Company for a period
commencing on the Effective Date and continuing until terminated by either
party. Employee will serve initially in the position designated in the Initial
Position, Compensation and Benefits Schedule attached hereto as Schedule A
("Schedule A") and will have those duties and responsibilities that the Company
assigns to Employee from time to time. The Company shall have the right in
its
sole discretion to assign Employee a different position or title, or new or
different duties and responsibilities, during Employee's employment with the
Company.
2.
Compensation.
As
remuneration for all services to be rendered by Employee during Employee's
employment under this Agreement, and as consideration for complying with the
covenants herein, the Company will pay and provide to Employee the
following:
a.
Salary.
During
Employee's employment, the Company shall pay Employee a salary or other base
rate compensation. Employee's initial salary or other base rate compensation
as
of the Effective Date is set forth in Schedule A. The Company and Employee
acknowledge and agree that the Company, in its sole discretion, may adjust
the
amount of Employee's salary or other base rate compensation (or any other
elements of compensation) from time to time during Employee's employment with
the Company. The salary or base rate compensation shall be paid to Employee
consistent with the customary payroll practices of the Company.
b.
Benefits.
During
Employee's employment, Employee will be entitled to participate in the Company's
employee benefit plans to which other employees of the Company are generally
entitled to participate; provided, however, Employee's entitlement to
participate in such benefit plans is subject to the eligibility requirements
and
other provisions of such benefit plans. The employee benefit plans in which
Employee will initially be entitled to participate, subject to the eligibility
requirements and other provisions of such plans, are identified in Schedule
A.
Employee understands and agrees that the Company, in its sole discretion, may
change, amend or discontinue any of its employee benefit plans or programs
at
any time during Employee's employment with the Company, and nothing contained
in
this Agreement shall obligate the Company to institute, maintain or refrain
from
changing, amending or discontinuing any benefit plan or program.
3.
Termination.
The
Company and Employee acknowledge and agree that Employee's employment is on
an
at-will basis, and, accordingly, either the Company or Employee may terminate
the employment relationship at any time for any reason, or no reason, with
or
without cause, and with or without advance notice. This Agreement does not
guarantee employment for any specific duration.
4.
Best
Efforts and Duty of Loyalty.
During
Employee’s employment with the Company, Employee will: (a) devote
Employee’s best efforts to the furtherance of the business of the Company;
(b) will not engage, directly or indirectly, in any activity, employment or
business venture, whether or not for remuneration, that is competitive with
the
Company’s business in any respect; and (c) will not take any action, or
make any omission, that deprives the Company of any business opportunities
or
otherwise act in a manner that conflicts with the best interest of the Company
or is detrimental to the business of the Company.
5.
Company
Property.
Employee
acknowledges and agrees that all tangible materials, equipment, documents,
copies of documents, data compilations (in whatever form), and electronically
created or stored materials that Employee receives or makes in the course of
Employee’s employment with the Company are and shall remain the property of the
Company, and Employee shall immediately return such property to the Company
upon
the Company’s request or upon termination of Employee’s employment with the
Company.
6.
Intellectual
Property.
a.
As
used
in this Agreement, the term “Inventions” means any and all discoveries,
inventions, developments, concepts, ideas and improvements related to Company’s
business, actual or contemplated, whether patentable or not, including, but
not
limited to, business processes and methods, product concepts, product line
extensions, new product formulations as well as improvements to any of the
foregoing or know-how related thereto. All Inventions made or conceived by
Employee, either solely or jointly with others, during Employee’s employment by
the Company, which are (1) related to the Company’s present business or future
business which the Company had under consideration while Employee was employed
by the Company, or (2) made by Employee in the course of Employee’s
employment or with the use of the Company’s facilities, materials or personnel,
and whether patented or not, are solely the property of the Company. Employee
will, without royalty or other consideration: (i) inform the Company promptly
and fully of such Inventions by written reports, setting forth in detail the
procedures employed and the results achieved, (ii) assign, and does hereby
assign, to the Company all Employee’s right, title and interest in and to such
Inventions and applications for United States and foreign Letters Patent, any
United States and foreign Letters Patent and renewals thereof granted upon
such
Inventions, (iii) assist the Company or its nominees, at the expense of the
Company, to obtain such United States and foreign Letters Patent for such
Inventions as the Company may elect and (iv) execute, acknowledge and deliver
to
the Company at its expense such written documents and instruments and do such
other acts as may be necessary in the opinion of the Company to obtain and
maintain United States and foreign Letters Patent upon such Inventions and
to
vest the entire right and title thereto in the Company and to confirm the
complete ownership by the Company of such Inventions.
b.
As
used
in this Agreement, “Works” means all works of authorship fixed in a tangible
medium of expression by Employee which are made during Employee’s employment by
the Company and which (1) are made by Employee during the course of or which
result from Employee’s employment by the Company, or (2) relate to the Company’s
present business or future business which the Company had under consideration
while Employee was employed by the Company including, but not limited to, flow
charts, algorithms, computer programs, computer source codes and object codes,
notes, drawings, memoranda, correspondence, documents, records and notebooks.
All Works created by Employee are and will remain exclusively the property
of
the Company. Each such Work is a “work made for hire,” and the Company may file
applications to register copyright as author thereof. To the extent such Work
cannot be a “work made for hire” under the U.S. Copyright Act, all of Employee's
right, title and interest in any such Work shall be and hereby is assigned
and
transferred to Company. Employee will do whatever reasonable acts the Company
requests to secure or aid in securing copyright protection and will assist
the
Company or its nominees in filing applications to register claims or copyright
in such Works. Except in connection with the performance of Employee's duties
for the Company, Employee will not reproduce, distribute, display publicly
or
perform publicly, alone or in connection with any data processing system, any
Works of the Company without written permission from the Company to do so.
Upon
the Company’s request or upon termination of Employee’s employment, Employee
will immediately deliver to the Company all Works and copies thereof then in
Employee’s possession or under Employee’s control.
c.
Employee
hereby assigns and transfers to the Company any “moral” rights Employee may have
in any Inventions or Works under any copyright, patent or other law, whether
United States or foreign. Employee agrees to waive and never assert any such
“moral” rights in any Inventions or Works during or after the termination of
employment with the Company. Employee agrees that the Company and its licensees
have sole discretion with regard to how and for what purposes, if any, any
Inventions or Works are used or distributed
d.
In
the
event the Company is unable, for any reason whatsoever, to secure Employee’s
signature to any lawful or necessary documents required to apply for, prosecute,
perfect, or assign any United States or foreign application for Letters Patent,
trademark or copyright registration, Employee hereby irrevocably designates
and
appoints the Company and its duly authorized officers and agents as Employee’s
agent and attorney in fact, to act for and on Employee’s behalf, to execute and
file any such application and to do all other lawfully permitted acts to further
the prosecution, issuance or assignment of Letters Patent on such Developments,
or registrations for trademark or copyright on such Developments, with the
same
force and effect as if executed by Employee. Employee hereby waives and
quitclaims to Company any and all claims, of any nature whatsoever, which
Employee may now have or may hereafter have for infringement of any patent,
trademark, or copyright resulting from any such application.
7.
Non-Disclosure
of Confidential Information.
As used
in this Agreement, the term “Confidential Information” means any and all of the
Company’s trade secrets, confidential and proprietary information and all other
non-public information and data of the Company or its businesses, including,
without limitation, lists of customers, information pertaining to customers,
information received from customers, information pertaining to business
partners, information received from business partners, information received
from
any third parties that the Company is obligated to keep confidential, marketing
plans and strategies, information pertaining to suppliers, pricing information,
cost information, research and development information, processes, programs,
inventions, business plans, financial information, data compilations, personnel
information and information about prospective customers or prospective products
and services, whether or not reduced to writing or other tangible medium of
expression, including work product created by Employee in rendering services
for
the Company. During Employee’s employment with the Company and thereafter,
Employee will not use or disclose to others any of the Confidential Information,
except as authorized in writing by the Company or in the performance of work
assigned to Employee by the Company. Employee agrees that the Company owns
the
Confidential Information and Employee has no rights, title or interest in any
of
the Confidential Information. Additionally, Employee will abide by the Company’s
policies protecting the Confidential Information. At the Company’s request or
upon termination of Employee’s employment with the Company, Employee will
immediately deliver to the Company any and all materials (including copies
and
electronically stored data) containing any Confidential Information in
Employee’s possession, custody or control. Upon termination of Employee’s
employment with the Company for any reason, Employee will, if requested by
the
Company, provide the Company with a sworn written statement disclosing whether
Employee has returned to the Company all materials (including all copies and
electronically stored data) containing any Confidential Information previously
in Employee’s possession, custody or control. Employee’s confidentiality
obligations shall continue as long as the Confidential Information remains
confidential, and shall not apply to information which becomes generally known
to the public through no fault or action of Employee or others who were under
confidentiality obligations as to such information.
8.
Non-Competition
Covenants. Employee
agrees to the following non-competition covenants:
a.
During
Employee's employment with the Company and for a period of twelve (12) months
immediately after the termination of such employment, Employee will not provide,
sell, market, assist in the provision, selling or marketing of, or attempt
to
provide, sell or market any Competing Products/Services to any of the Company’s
Customers or otherwise solicit or communicate with any of the Company’s
Customers for the purpose of selling, providing or servicing or attempting
to
sell, provide or service any Competing Products/Services. For purposes of this
Agreement, the term “Competing Products/Services” means products and/or services
that are similar to and competitive with the products and/or services that
are
offered, sold or provided by the Company at the time of the termination of
Employee’s employment with the Company or within twenty-four (24) months
immediately prior to such termination. For purposes of this Agreement, the
term
“Company’s Customers” means any person or entity to whom the Company sold or
provided any products and/or services at any time during the twenty-four (24)
months immediately preceding the termination of Employee’s employment with the
Company.
b.
During
Employee's employment with the Company and for a period of eighteen (18) months
immediately after the termination of such employment, Employee will not provide,
sell, market, assist in the provision, selling or marketing of, or attempt
to
provide, sell or market any Competing Products/Services to any of the Company's
Customers to whom Employee made (or assisted in) sales or provided (or assisted
in the provision of) services on behalf of the Company, with whom Employee
had
business contact on behalf of the Company, for whom Employee had any sales
or
service or product responsibility (including without limitation any supervisory
or managerial responsibility) on behalf of the Company or about whom Employee
acquired or had access to any Confidential Information concerning the Company’s
business with such customer at any time during the twenty-four (24) months
immediately preceding the termination of Employee's employment with the Company,
or otherwise solicit or communicate with any such customers for the purposes
of
selling, providing or servicing any Competing Products/Services.
c.
During
Employee's employment with the Company and for a period of twelve (12) months
immediately after the termination of such employment, Employee will not provide,
sell, market, assist in the provision, selling or marketing of, or attempt
to
provide, sell or market any “Competing Products/Services” to any of the
Company’s “Active Prospects,” or otherwise solicit or communicate with any of
the Company’s “Active Prospects” for the purpose of selling or providing any
Competing Products/Services. For purposes of this Agreement, the term “Active
Prospects” means any potential customers with which the Company has communicated
and (1) to which the Company has submitted a proposal or quote for the sale
or provision of goods or services, (2) for whom the Company has begun
formulating or preparing a proposal or quote for the sale or provision of goods
or services or (3) for which the Company has received a response or inquiry
requesting either a proposal, quote or additional information relating to the
Company’s products and/or services, within the six (6) month period immediately
preceding the termination of Employee’s employment with the
Company.
d.
During
Employee's employment with the Company and for a period of eighteen (18) months
immediately after the termination of such employment, Employee will not solicit,
recruit, hire, employ or attempt to hire or employ, or assist any person or
entity in the recruitment or hiring of, any person who is an employee of the
Company, or otherwise urge, induce or seek to induce any person to terminate
his/her employment with the Company.
e.
During
Employee's employment with the Company and for a period of eighteen (18) months
immediately after the termination of such employment, Employee will not urge,
induce or seek to induce any of the Company’s independent contractors,
subcontractors, business partners, distributors, brokers, consultants, sales
representatives, vendors or suppliers to terminate their relationship with,
or
representation of, the Company or to cancel, withdraw, reduce, limit or in
any
manner modify any such person’s or entity’s business with, or representation of,
the Company for whatever purpose or reason.
f.
During
Employee's employment with the Company and for a period of eighteen (18) months
immediately after the termination of such employment, Employee will before
commencing employment with or providing services to any other business
enterprise, whether as an employee, independent contractor, consultant, advisor
or otherwise: (1) notify the Company in writing of the proposed employment
or services engagement, including the details concerning the identity of the
business enterprise and the nature of the proposed employment or services
engagement; and (2) notify such business enterprise of this Agreement and
provide such business enterprise with a copy of this Agreement.
g.
Employee
acknowledges and agrees that the covenants contained in this Section 8
prohibit Employee from engaging in certain activities directly or indirectly,
whether on Employee’s own behalf or on the behalf of any other person or entity,
and regardless the capacity in which Employee is acting, including without
limitation as an employee, independent contractor, owner, partner or
advisor.
h.
In
the
event Employee violates any of the non-competition covenants contained in this
Section 8, the duration of all such non-competition covenants shall
automatically be extended by the length of time during which Employee was in
violation of any such covenant.
i.
The
Company and Employee agree that for purposes of the non-competition covenants
set forth in Section 8 of this Agreement, the term “Employee’s employment
with the Company” includes not only the period during which Employee is directly
employed by the Company, but also any period thereafter during which Employee
provides services to the Company in any manner whatsoever, including without
limitation as a consultant, independent contractor or leased employee.
Accordingly, all post-employment restrictions shall begin to run from the time
at which Employee ceases to provide services to the Company in any manner
whatsoever, including without limitation as an employee, consultant, independent
contractor or leased employee.
9.
Severability;
Reformation of Restrictions.
The
covenants and restrictions in this Agreement are separate and divisible, and
to
the extent any covenant, provision or portion of this Agreement is determined
to
be unenforceable or invalid for any reason, such unenforceability or invalidity
shall not affect the enforceability or validity of the remainder of this
Agreement. If any particular covenant, provision or portion of this Agreement
is
determined to be invalid or unenforceable for any reason, including, but not
limited to, the time period, geographic area and/or scope of activity covered
by
any non-competition covenant, such covenant, provision or clause shall
automatically be deemed reformed such that the contested covenant, provision
or
portion will have the closest effect permitted by applicable law to the original
form and shall be given effect and enforced as so reformed to whatever extent
would be reasonable and enforceable under applicable law. The Company and
Employee agree that any court interpreting any non-competition or non-disclosure
provision of this Agreement shall, if necessary, reform any such provision
to
make it enforceable under applicable law.
10.
Remedies.
Employee
recognizes that a breach or threatened breach by Employee of this Agreement
will
give rise to irreparable injury to the Company and that money damages will
not
be adequate relief for such injury, and, accordingly, agrees that the Company
shall be entitled to obtain injunctive relief, including, but not limited to,
temporary restraining orders, preliminary injunctions and/or permanent
injunctions, without having to post any bond or other security, to restrain
or
prohibit such breach or threatened breach, in addition to any other legal
remedies which may be available, including the recovery of monetary damages
from
Employee. In addition to all other relief to which it shall be entitled, the
Company shall be entitled to recover from Employee all litigation costs and
attorneys’ fees incurred by the Company in any action or proceeding relating to
this Agreement in which the Company prevails in any respect, including, but
not
limited to, any action or proceeding in which the Company seeks enforcement
of
this Agreement or seeks relief from Employee’s violation of this
Agreement.
11.
Survival
of Obligations.
Employee
acknowledges and agrees that certain of Employee’s obligations under this
Agreement, including, without limitation, Employee’s non-disclosure and
non-competition obligations, shall survive the termination of Employee’s
employment with the Company, whether or not such termination is with or without
cause or whether or not it is voluntary or involuntary. Employee further
acknowledges and agrees that Employee’s intellectual property, non-disclosure
and non-competition covenants set forth in Sections 6, 7 and 8 of this
Agreement shall be construed as independent covenants and that no breach of
any
contractual or legal duty by the Company shall be held sufficient to excuse
or
terminate Employee’s obligations under Sections 6, 7 and 8 of this
Agreement or to preclude the Company from obtaining injunctive relief for
Employee’s violation or threatened violation of such covenants.
12.
No
Conflicting Agreements; No Use of Others’ Trade Secrets.
Employee
represents and warrants to the Company that: (a) Employee’s employment by
the Company and the performance of Employee’s employment duties will not
constitute a breach of any agreements to which Employee is a party, including
without limitation any employment or non-competition agreement with any former
employer; and (b) Employee has not brought and will not bring to the
Company and will not use or disclose during the performance of Employee’s
employment services for the Company any documents, materials or information
subject to any legally enforceable restrictions or obligations as to
confidentiality or secrecy.
13.
Reasonableness
of Terms.
The
Company and Employee acknowledge and agree that the restrictions imposed upon
Employee under this Agreement are reasonable and necessary for the protection
of
the Company’s legitimate interest, including without limitation for the
protection of the Company’s trade secrets, confidential information and good
will, particularly given that: (a) the Company is engaged in a highly
competitive business; and (b) Employee will have access to and will help
develop Confidential Information and/or will help develop goodwill with the
Company’s customers. Employee further acknowledges and agrees that the
restrictions set forth in this Agreement will not pose any substantial hardship
on Employee and that Employee will reasonably be able to earn a livelihood
without violating any provision of this Agreement.
14.
Governing
Law; Choice of Forum.
The
Company and Employee acknowledge and agree that this Agreement shall be
interpreted and enforced in accordance with the laws of the State of Indiana,
without giving effect to any choice or conflict of law rule or principle
(whether the State of Indiana or any other jurisdiction) that would cause the
application of the law of any jurisdiction other than the State of Indiana.
The
Company and Employee further acknowledge and agree that this Agreement is
intended, among other things, to supplement the provisions of the Uniform Trade
Secrets Act, as amended from time to time, and the duties Employee owes to
the
Company under the common law, including, but not limited to, the duty of
loyalty, and this Agreement does not nullify any legal duties or obligations
Employee owes to the Company under the common law or applicable statutes. The
Company and Employee agree that any legal action relating to this Agreement
shall be commenced and maintained exclusively before any appropriate state
court
of record in Xxxxxx County, Indiana, or in the United States District Court
for
the Southern District of Indiana, Indianapolis Division; further, the parties
hereby irrevocably consent and submit to the jurisdiction and venue of such
courts and waive any right to challenge or otherwise object to personal
jurisdiction or venue (including, without limitation, any objection based on
inconvenient forum grounds) in any action commenced or maintained in such
courts.
15.
Employment
Policies.
Employee
acknowledges that not all rules and policies applicable to Employee’s employment
are contained in this Agreement, and Employee agrees to abide by any employment
or work rules and/or policies that the Company currently has or may adopt,
amend
or implement from time to time during Employee’s employment with the
Company.
16.
Successors
and Assigns.
The
Company shall have the right to assign this Agreement. This Agreement shall
inure to the benefit of, and may be enforced by, any and all successors and
assigns of the Company, including without limitation by asset assignment, stock
sale, merger, consolidation or other corporate reorganization, and shall be
binding on Employee, Employee’s executors, administrators, personal
representatives or other successors in interest. Employee shall not have the
right to assign this Agreement.
17.
Standing.
Employee
acknowledges that this Agreement is intended to benefit, and may be enforced
by,
Interactive or any of its subsidiaries or affiliates which are included within
the definition of the Company as set forth in recital A of this
Agreement.
18.
No
Waiver. The
failure of the Company to insist in any one or more instances upon such
performance of any of the provisions of this Agreement or to pursue its rights
hereunder shall not be construed as a waiver of any such provisions or the
relinquishment of any such rights.
19.
Entire
Agreement; Modification.
This
Agreement constitutes the entire agreement of the parties with respect to the
subjects specifically addressed herein, and supersedes any prior agreements,
understandings, or representations, oral or written, on the subjects addressed
herein. This Agreement may not be amended, supplemented, or modified except
by a
written document signed by both Employee and a duly authorized officer of the
Company.
20.
Standing.
Employee
acknowledges that this Agreement is intended to benefit, and may be enforced
by,
Interactive and/or any other affiliated entities as described in the
above-stated definition of the Company.
21.
Counterparts.
This
Agreement may be executed in one or more counterparts (or upon separate
signature pages bound together into one or more counterparts), all of which
taken together shall constitute one agreement.
IN
WITNESS WHEREOF, Interactive and Employee have executed this Agreement in
Indianapolis, Indiana, as of the date first hereinabove stated.
INTERACTIVE
INTELLIGENCE, INC. EMPLOYEE
By:
/s/
Xxxxxx X. Brown________________ /s/
Xxxx X. Blough____________________
Xxxx
X. Xxxxxx
Printed
Name: Xxxxxx
X. Xxxxx _________
Title:
President
and Chief Executive Officer
SCHEDULE
A TO EMPLOYMENT, NON-DISCLOSURE
AND
NON-COMPETITION AGREEMENT DATED MAY 26, 2006
BETWEEN
INTERACTIVE
INTELLIGENCE, INC.
AND
XXXX
X. XXXXXX
Initial
Position, Compensation and Benefits Schedule
1. Position/Title: Vice
President, Worldwide Sales
|
2.
|
Salary
or base rate: $200,000
annually
|
3. Other
compensation: Incentive
as detailed in Sales Compensation Plan.
4. Vacation: 4
weeks per calendar year (prorated for any partial calendar
year)
|
[Such
vacation is earned on an accrual basis and is subject to and governed
by
the Company's vacation policies, as may be amended from time to
time.]
|
5. Other
Benefits: Medical,
Vision and Dental Insurance, 401k Plan, Long-Term
Disability
Insurance, Cafeteria 125 Plan
|
[Such
benefits are subject to and governed by the terms and conditions
of such
plans, as may be amended from time to
time.]
|
The
Company may, in its sole discretion, modify, adjust or change (increase or
decrease) Employee’s compensation and benefits, including, without limitation,
the salary or base rate compensation, from time to time during Employee’s
employment with the Company.
|
EMPLOYEE
/s/
Xxxx X. Blough__________________
Xxxx
X. Xxxxxx
|
INTERACTIVE
INTELLIGENCE, INC.
By:
/s/
Xxxxxx X. Brown______________
Title:_President
and Chief Executive Officer
|
