EXHIBIT 10.5
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (this "Agreement") is dated and made
effective the 1st day of January, 1998 (the "Effective Date") between
Interactive Objects, Inc. a Utah corporation (the "Company") and Xxxx X. Xxxxxxx
(the "Employee").
1. Employment. Company employs and Employee accepts employment on the
terms and conditions in this Agreement.
2. Duties. Employee is employed in the capacity of Executive Vice
President. Employee shall perform the duties customarily performed by an
Executive Vice President, provided that Employee's precise duties may be
changed, extended or curtailed, from time to time, at the Company's direction,
and Employee shall assume and perform the further reasonable responsibilities
and duties that the Company may assign from time to time.
3. Intensity of Effort; Other Business. Employee shall devote Employee's
entire working time, attention and efforts to Company's business and affairs,
shall faithfully and diligently serve Company's interests and shall not engage
in any business or employment activity that is not on Company's behalf (whether
or not pursued for gain or profit) except for (a) activities approved in writing
in advance by the Board and (b) passive investments that do not involve Employee
providing any advice or services to the businesses in which the investments are
made.
4. Term. The term of this Agreement starts on the Effective Date and
expires one year later (the "Initial Term"). This Agreement shall automatically
be renewed for successive one-year terms (each referred to as an "Extended
Term") unless either party gives written notice of nonrenewal at least thirty
(30) days before the expiration of the term. Unless stated otherwise, the word
"year" as used in this Agreement refers to incremental periods of 365 days each
(366 days in the case of a leap year), not calendar years. This Agreement may
terminate before the expiration of any term as provided below.
5. Compensation. Employee's compensation shall be as follows:
a. Employee's salary initially shall be $8,333 per month ($100,000
per year on an annualized basis), which shall be computed and paid in equal
installments consistent with Company's normal payroll procedures. At the end of
each calendar year, Employee's salary shall be reviewed by the Board and
adjusted as determined by the Board in its sole discretion, provided that,
absent cause or Employee's consent, it may not be adjusted downward.
b. Employee may receive annual bonuses, profit sharing and/or
incentive compensation based on Company's profitability as determined by the
Board in its sole discretion.
c. Employee shall be eligible for such other compensation as may be
provided by the Board in its sole discretion.
6. Benefit Plans. Employee shall be eligible for all benefit plans
(including retirement or pension plans, profit sharing plans and stock option
plans) that are provided generally to Company's executive employees.
7. Vacation and Personal Leave. Employee shall be entitled to such paid
vacation and personal days per calendar year (prorated if this Agreement begins
and/or ends in the middle of a calendar year) as provided in the Company's
benefit plan set forth in the Company's Employee Handbook.
8. Disability. Employee shall be entitled to such disability benefits as
provided in the Company's benefit plan set forth in the Company's Employee
Handbook.
9. Business Expenses. Employee is authorized to incur reasonable travel
and entertainment expenses to promote Company's business. Company shall
reimburse Employee for those expenses. Employee shall provide to Company the
itemized expense account information that Company reasonably requests.
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10. Termination. Employee's employment may be terminated before the
expiration of this Agreement as follows, in which event Employee's compensation
and benefits shall terminate except as otherwise provided below:
a. By Company Without Cause. Company may terminate Employee's
employment at anytime, without cause or good reason or advance notice. If
Company terminates Employee's employment without cause, however, and provided
that Employee releases Company and its agents from any and all claims in a
signed, written release satisfactory in form and substance to Company, Company
shall pay to Employee termination payments equal to two months' salary, based on
Employee's total base salary (excluding bonuses, commissions and other
compensation) for the year in which Employee is terminated. These termination
payments shall be paid out at Employee's normal salary rate on regular payroll
days subject to normal payroll deductions. Employee shall not be required to
mitigate the amount of these termination payments by seeking other employment or
otherwise, and no income to Employee of any kind shall reduce the termination
payments.
b. By Company for Cause. Company may terminate Employee's
employment for cause. If Company wishes to terminate Employee's employment for
cause it shall first give Employee 30 days' written notice of the circumstances
constituting cause and an opportunity to cure, unless the circumstances are not
subject to being cured. Following the notice and opportunity to cure (if cure is
not made), or immediately if notice and opportunity to cure are not required,
Company may terminate Employee's employment for cause by giving written notice
of termination. The notice may take effect immediately or at such later date as
Company may designate, provided that Employee may accelerate the termination
date by giving five business days' written notice of the acceleration. Any
termination of Employee's employment for cause must be approved by a majority of
the Board other than Employee. Employee must be given reasonable advance notice
of the meeting at which termination is to be considered, and a reasonable
opportunity to address the Board.
For purposes of this Agreement "cause" means and is limited to dishonesty,
fraud, commission of a felony or of a crime involving moral turpitude,
destruction or theft of Company property, physical attack to a fellow employee,
intoxication at work, use of narcotics or alcohol to an extent that materially
impairs Employee's performance of his or her duties, willful malfeasance or
gross negligence in the performance of Employee's duties, violation of law in
the course of employment that has a material adverse impact on Company or its
employees, misconduct materially injurious to Company, or any material breach of
Employee's duties or obligations to Company that results in material harm to
Company.
c. By Employee Without Good Reason. Employee may terminate
Employee's employment at any time, with or without good reason, by giving ninety
(90) days' advance written notice of termination.
d. By Employee for Good Reason. Employee may terminate Employee's
employment for good reason, in which event Employee shall be entitled to the
same rights under this Agreement as if Company had terminated Employee's
employment without cause. If Employee wishes to terminate employment for good
reason Employee shall first give Company 30 days' written notice of the
circumstances constituting good reason and an opportunity to cure, unless the
circumstances are not subject to being cured. Following the notice and
opportunity to cure (if cure is not made), or immediately if notice and
opportunity to cure are not required, Employee may terminate employment for good
reason by giving written notice of termination. The notice may take effect
immediately or at such later date as Employee may designate, provided that
Company may accelerate the termination date by giving five business days'
written notice of the acceleration.
For purposes of this Agreement, "good reason" means and is limited to the
occurrence without cause and without Employee's consent of a material reduction
in the character of Employee's duties, level of work responsibility or working
conditions, a reduction in Employee's salary and/or benefits greater than 10% of
the level initially established at the commencement of this Agreement, Company
requiring Employee to be based anywhere other than the greater Seattle area,
except for reasonable travel on Company's business, or any material breach by
Company of its duties or obligations to Employee that results in material harm
to Employee.
e. Death. Employee's employment shall terminate automatically upon
Employee's death.
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11. Indemnification. Company shall defend and indemnify Employee from and
against any and all claims that may be asserted against Employee by third
parties (including derivative claims asserted by third parties on behalf of
Company) that are connected with Employee's employment by Company, to the extent
permitted by applicable law. The foregoing notwithstanding, Company shall not be
required to defend or indemnify Employee (a) in criminal proceedings, (b) in
civil proceedings where Employee is the plaintiff or (c) to the extent it is
finally adjudicated that Employee did not act in good faith and in the
reasonable belief that Employee's actions were appropriate in the discharge of
Employee's duties for Company. Company may fulfill its duty of defense by
providing competent legal counsel of Company's choosing. The foregoing rights
are in addition to any other rights to which Employee may be entitled under any
other agreement, policy, bylaw, insurance policy, ordinance, statute or other
provision.
12. Invention, Confidentiality, Nonraiding and Noncompetition Agreement.
Employee shall execute an Invention, Confidentiality, Nonraiding and
Noncompetition Agreement in the form attached as Exhibit A, which is a part of
this Agreement.
13. Dispute Resolution. All disputes between Employee and Company that
otherwise would be resolved in court shall be resolved instead by the following
alternate dispute resolution process (the "Process").
a. Disputes Covered. This Process applies to all disputes between
Employee and Company, including those arising out of or related to this
Agreement or Employee's employment at Company. Disputes subject to this Process
include but are not limited to pay disputes, contract disputes, wrongful
termination disputes and discrimination, harassment or civil rights disputes.
This Process applies to disputes Employee may have with Company and also applies
to disputes Employee may have with any of Company's employees or agents so long
as the employee or agent with whom Employee has the dispute is also bound by or
consents to this Process. This Process applies regardless of when the dispute
arises and will remain in effect after Employee's employment with Company ends,
regardless of the reason it ends. This Process does not apply, however, to
workers' compensation or unemployment compensation claims.
b. Mediation. Before having an arbitration hearing, Employee and
Company agree to attempt to resolve all disputes by mediation using the
Employment Mediation Rules of the American Arbitration Association. Mediation is
a nonbinding process in which a neutral person helps the parties to try to reach
an agreement to resolve their disputes. If the mediation is done after one party
has started the arbitration process, the mediation shall not delay the
arbitration hearing date. Temporary or interim relief may be sought without
mediating first. Any failure to mediate shall not affect the validity of an
arbitration award or the obligation to arbitrate.
c. Arbitration. All disputes that are not resolved by agreement (in
mediation or otherwise) shall be determined by binding arbitration. Arbitration
is a process in which one or more neutral people decide the case after hearing
evidence presented by both sides. The arbitration shall be governed by the rules
of the American Arbitration Association.
d. Injunctive Relief. Either party may request a court to issue such
temporary or interim relief (including temporary restraining orders and
preliminary injunctions) as may be appropriate, either before or after mediation
or arbitration is commenced. The temporary or interim relief shall remain in
effect pending the outcome of mediation or arbitration. No such request shall be
a waiver of the right to submit any dispute to mediation or arbitration.
e. Attorneys' Fees, Venue and Jurisdiction in Court. In any lawsuit
arising out of or related to this Agreement or Employee's employment at Company,
the prevailing party shall recover reasonable costs and attorneys' fees,
including on appeal. Venue and jurisdiction of any such lawsuit shall exist
exclusively in state and federal courts in King County, Washington, unless
injunctive relief is sought by Company and, in Company's judgment, that relief
might not be effective unless obtained in some other venue. These provisions do
not give any party a right to proceed in court in violation of the agreement to
arbitrate described above.
f. Employment Status. This Dispute Resolution Process does not
guarantee continued employment, require discharge only for cause or require any
particular corrective action or discharge procedures.
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14. Governing Law. This Agreement shall be governed by the internal laws
of the state of Washington without giving effect to provisions thereof related
to choice of laws or conflict of laws.
15. Saving Provision. If any part of this Agreement is held to be
unenforceable, it shall not affect any other part. If any part of this
Agreement is held to be unenforceable as written, it shall be enforced to the
maximum extent allowed by applicable law. The indemnification, confidentiality,
limitations on publicity, possession of materials, noncompetition, nonraiding
and dispute resolution provisions of this Agreement shall survive after
Employee's employment by Company ends, regardless of the reason it ends, and
shall be enforceable regardless of any claim Employee may have against Company.
16. Waiver. No waiver of any provision of this Agreement shall be valid
unless in writing, signed by the party against whom the waiver is sought to be
enforced. The waiver of any breach of this Agreement or failure to enforce any
provision of this Agreement shall not waive any later breach.
17. Assignment; Successors. Company may assign its rights and delegate
its duties under this Agreement. Employee may not assign Employee's rights or
delegate Employee's duties under this Agreement.
18. Binding Effect. This Agreement is binding upon the parties and their
personal representatives, heirs, successors and permitted assigns.
19. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original and all of which, taken
together, shall constitute a single agreement.
20. Legal Representation. In connection with this Agreement, the law firm
of Cairncross & Hempelmann has represented only Company and has not represented
Employee. Employee acknowledges that Employee has been advised to consult with
independent legal counsel before signing this Agreement and has had the
opportunity to do so.
21. Complete Agreement. This Agreement, together with the attached
Exhibits, is the final and complete expression of the parties' agreement
relating to Employee's employment, and supercedes any prior employment
agreements and/or understandings between the parties. This Agreement may be
amended only by a writing signed by both parties; it may not be amended orally
or by course of dealing. The parties are not entering into this Agreement
relying on anything not set out in this Agreement. This Agreement shall control
over any inconsistent policies or procedures of Company, whether in effect now
or adopted later, but Company's policies and procedures that are consistent with
this Agreement, whether in effect now or adopted later, shall apply to Employee
according to their terms.
DATED as of the date first written above.
EMPLOYEE: XXXX X. XXXXXXX
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/s/ Xxxx X. Xxxxxxx
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INTERACTIVE OBJECTS, INC.:
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By: /s/ Xxxx Xxxxx
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Its: Chairman/CEO
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AMENDMENT TO COMPENSATION AGREEMENT
This Amendment (the "Amendment") is entered into and made effective as of
the 1st day of July, 1998 and amends that certain Compensation Agreement (the
"Agreement") dated as of January 1, 1998 between Interactive Objects, Inc., a
Washington corporation (the "Company"), and Xxxx X. Xxxxxxx (the "Employee").
The parties hereby agree as follows:
1. The first phrase of the first sentence in Section 5(a) of the
Agreement is amended to read as follows:
"Employee's salary initially shall be $11,250 per month ($135,000 per year
on an annualized basis), ...".
2. Section 10(a) of the Agreement is amended to read in its entirety as
follows:
"a. By Company Without Cause. Company may terminate Employee's
employment at any time, without cause or good reason or advance notice."
3. A new Section 10(e) is added to the Agreement to read in its entirety
as follows:
"x. Xxxxxxxxx. If (i) Company terminates Employee's employment for
any reason other than fraud or (ii) Employee terminates Employee's
employment for any reason or no reason, and, in any event, provided that
Employee releases Company and its agents from any and all claims in a
signed, written release satisfactory in form and substance to Company,
Company shall pay to Employee termination payments equal to twelve months'
salary, based on Employee's total base salary (excluding bonuses,
commissions and other compensation) for the year in which Employee is
terminated."
4. Except as amended above, the Agreement shall continue in full force
and effect as though set forth in this Amendment.
DATED as of the date first above written.
EMPLOYEE: INTERACTIVE OBJECTS, INC.:
/s/ Xxxx X. Xxxxxxx By: /s/ Xxxx Xxxxx
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XXXX X. XXXXXXX Its: Chairman/CEO
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