ACTIVE VOICE CORPORATION
EMPLOYMENT AGREEMENT
This Employment Agreement (hereinafter "Agreement") is entered into this
27th day of November, 1996 by and between Active Voice Inc. a Washington
corporation (hereinafter "Employer") and Xxxxx X. Xxxxx (hereinafter
"Employee"). The terms of this Agreement are set out below as agreed upon
between the parties hereto.
Therefore, in consideration of the mutual promises contained herein, it
is agreed as follows:
1. EMPLOYMENT AND TITLE.
The Employer hereby employs the Employee and the Employee hereby
accepts employment as under the terms and conditions hereinafter set forth.
2. TERM OF AGREEMENT.
This Agreement shall remain in effect for an initial term of one (1)
year, and shall be automatically renewed for succeeding terms of one (1)
year, unless terminated pursuant to Paragraph 7 hereof. During the term of this
Agreement, Employee shall devote his/her full time and attention and his/her
best efforts to the conduct of business of the Employer. Full time shall be
defined as a least forty (40) hours per week.
3. COMPENSATION.
For all services rendered by the Employee under this Agreement, the
Employer shall pay the employee a salary of $120,000.00 per year. The
compensation paid to the Employee, including commissions, incentives, and/or
other benefits, may be specifically agreed to in writing.
4. DUTIES.
The Employee will perform all President/Chief Operating Officer
duties as requested by the Employer.
5. EXPENSES.
Subject to the written consent of the Employer, the Employee is
authorized to incur reasonable expenses for promoting the business of the
Employer, including expenses for entertainment, travel, and/or similar items.
The written consent of the Employer shall not be required with regard to
incidental expenses of a minor nature incurred by the Employee in the course
of his/her duties for the Employer, in which case oral consent shall be
sufficient. The Employer will reimburse the Employee
for all such expenses upon the presentation by the Employee from time to time
of an itemized account of all such expenditures.
6. MEDICAL AND DENTAL INSURANCE.
The Employee shall be covered under the Employer's group medical and
dental insurance policies. To the extent that the Employee is not covered
under such policies, the Employer shall pay an equivalent amount to a plan
selected by the Employee.
7. TERMINATION OF AGREEMENT.
This Agreement shall be terminated upon the occurrence of any one or
more of the following events:
7.1 the death of the Employee;
7.2 mutual agreement to termination in writing between the
Employer and the Employee;
7.3 forty-five (45) days' written notice of termination given by
the Employee to the Employer;
7.4 the determination by the Employer's President to terminate the
Employee, with or without cause, giving the Employee not less than thirty (30)
days' written notice if without cause.
In the event of such a termination, the Employee shall continue to render
services to the Employer and shall receive his/her regular compensation up to
the date of termination.
8. VENUE AND JURISDICTION.
This Agreement has been entered into for employment in the State of
Washington, and shall be governed by the laws of the State of Washington. In
the event that any dispute arises between the parties, the parties agree that
venue and jurisdiction shall be in King County, Washington and that the
prevailing party shall be entitled to all costs and actual attorney's fees,
including those incurred on appeal.
9. WAIVER OF BREACH.
The waiver by the Employer of a breach of any provision of the
Agreement by the Employee shall not operate or be construed as a waiver of
any subsequent breach by the Employee.
10. SEVERABILITY.
The invalidity or unenforceability of any provision herein shall in
no way affect the validity or enforceability of any other provisions.
11. NOTICES.
Any demand, request, or notice that either party hereto desires or
may be required to make or deliver to the other shall be in writing and shall
be deemed delivered when personally delivered or three (3) days after being
deposited in the United States mail, postage prepaid, in registered or
certified form, addressed 1) in the case of the Employee, to his/her last
known address, and 2) in the case of the Employer, to its principal place of
business.
12. BINDING EFFECT.
This Agreement shall bind the parties hereto and their heirs,
executors, officers, administrators, successors, and assigns.
13. COMPLETE AGREEMENT.
This Agreement contains the entire agreement between parties
relating to the subject matter hereof and no modification of this Agreement
shall be valid unless made in writing and signed by the parties hereto.
EMPLOYER
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ACTIVE VOICE INC.
BY /s/ Xxxxxx X. Xxxxxxxx
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Date 12-11-96
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EMPLOYEE
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/s/ Xxxxx X. Xxxxx
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Date 12-10-96
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ACTIVE VOICE CORPORATION
PROPRIETARY RIGHTS AGREEMENT
In consideration of my employment by Active Voice, Inc. ("Active
Voice") or my continued employment at will by Active Voice, whether as a
regular employee or an independent contractor, and the payment to me of
salary or other compensation, including deferred compensation, that I shall
receive during my employment, I agree as follows:
1. CONFIDENTIALITY.
1.1 I will not, without Active Voice's prior written permission,
disclose to anyone outside of Active Voice or use in other than Active
Voice's business, either during or after my employment, any confidential
information or material of Active Voice or any information or materials
received in confidence from third parties by Active Voice. I will presume
that the following types of information are all confidential except
information that has clearly been made available generally to the public;
source code, product designs and methods of operation, product and business
plans, and identities of Active Voice's customers and suppliers.
1.2 If I leave the employ of Active Voice, I will return all
property of Active Voice in my possession, including all confidential
information or material such as drawings, notebooks, reports and other
documents.
1.3 Confidential information or material of Active Voice is any
information or material: (a) generated or collected by or used in the
operations of Active Voice that relates to the actual or anticipated business
or research and development of Active Voice, or (b) suggested by or resulting
from any task assigned to me or work performed by me for or on behalf of
Active Voice, and which has not been made available generally to the public.
1.4 Because a breach of this provision may cause irreparable harm
to Active Voice with no adequate remedy, this provision may be enforced by
court order.
2. NON-COMPETITION.
2.1 To ensure that no confidential information of Active Voice is
improperly used or disclosed, I will not, during the term of my employment
and for a period of six months following termination, assist any other
company, whether as owner, shareholder, director, employee, contractor, or
volunteer, which is developing or marketing any computer software or software
controlled hardware designed for use in conjunction with telephone systems
for the following purposes: voice recording or playback, call accounting,
general purpose microcomputer connected to and communicating with a PBX.
2.2 Examples of companies which are currently proscribed include:
Applied Voice Technology, Panoply, Octel, Mitel, Dytel, VMX, Advanced Voice
Technology, Boston Technology, AT&T, Rolm, Unisys, Wang, NEC, Dictaphone,
Siemens, Northern Telecom, and Brooktrout.
3. CONFIDENTIALITY DUTIES TO OTHERS.
3.1 I will not disclose to Active Voice, use in its business, or
cause it to use, any information or material which is confidential to others.
3.2 I do not have in my possession or control any documents or
other materials containing confidential information of my former employers
which might be considered to be of interest to Active Voice.
3.3 On the last page of this Agreement I have listed and
identified all non-competition or non-disclosure agreements which may remain
currently binding between myself and any former employers. If I do not have
any to identify, I have written "none" on this line: .
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4. RIGHTS TO DEVELOPMENTS.
4.1 I hereby assign to Active Voice my entire right, title, and
interest in any idea, invention, design of a useful article (whether the
design is ornamental or otherwise), computer program and related
documentation, and any other Work of authorship (all hereafter called
"Developments"), made or conceived during my employment with Active Voice
solely or jointly by me, or created wholly or in part by me, whether or not
such Developments are patentable, protected by copyrights, or susceptible to
other forms of protection, where the Developments: (a) relate to the actual
or anticipated business or research or development of Active Voice, or (b)
result from any task assigned to me or work performed by me for or on behalf
of Active Voice.
4.2 This assignment provision does not apply to an invention for
which no equipment, supplies, facility, or trade secret information of Active
Voice was used and which was developed entirely on my own time, unless it
meets condition (a) or (b) above.
4.3 Excluded are any Developments that I cannot assign to Active
Voice because of a prior agreement made prior to employment by Active Voice
with
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which is effective until
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NONE
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(give name and date or write "none)
4.4 I acknowledge that the copyrights and any other intellectual
property rights in designs, computer programs and related documentation, and
works of authorship, created within the scope of my employment, belong to
Active Voice by operation of law. I expressly acknowledge that Active Voice
is to be the "author," within the meaning of the United States Copyright Act
(the "Act"), of any of my work product that may be considered a "work for
hire" within the meaning of the Act.
5. PREEXISTING DEVELOPMENTS.
5.1 On the last page of this Agreement I have identified all
Developments not assigned by section 4 in which I have any right, title, or
interest, and which were previously made or conceived solely or jointly by
me, or written wholly or in part by me, but neither published nor filed in
any patent office, whether or not previously identified to Active Voice.
5.2 If I do not have any to identify, I have written "none" on
this line: NONE . (Note: It is in your interest to establish that any
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of the above were made, conceived, or written before your employment
by Active Voice. You should not disclose them in detail, but identify them only
by the titles and dates of documents describing them.)
5.3 In the event (and to the extent) that any work product
produced by me and delivered to Active Voice for use by Active Voice or its
customers contains any items or elements which may be proprietary to me or
any of my suppliers, I hereby grant to Active Voice an irrevocable,
perpetual, non-exclusive, royalty-free, worldwide license to reproduce,
distribute copies of, prepare derivative works based on, display, and perform
the work product, and to authorize others to do any of the foregoing.
6. SECURING AND ENFORCING PROPRIETARY RIGHTS.
In connection with any of the Developments or work product assigned
or licensed by paragraphs 5 or 7; (a) I will promptly disclose them to Active
Voice's management; and (b) I will, on Active Voice's request, promptly
execute a specific assignment of title to Active Voice or its designer, and
do anything else reasonably neccessary to enable Active Voice or its designee to
secure and enforce patents, copyrights, or other forms of protection therefor
in the United States and in other countries. I irrevocably designate Active
Voice as my agent and attorney-in-fact to execute and file any applications
or other documents and to take any other actions to further the securing and
enforcement of such protection.
7. DISTRIBUTION OR ATTRIBUTION.
Active Voice and its licensees (direct and indirect) are not
required to make any distribution of or designate me as author of any design,
computer program or related documentation, or other work of authorship
assigned or licensed in sections 4 or 5.
8. RELIEF AND EXPENSES.
I acknowledge that any violation of this Agreement by me will cause
irreparable injury to Active Voice, and Active Voice shall be entitled to
extraordinary relief in court, including, but not limited to, temporary
restraining orders, preliminary injunctions, and permanent injunctions,
without the necessity of posting bond or security. If court proceedings are
required to enforce any provision or to remedy any breach of this Agreement,
the prevailing party shall be entitled to an award of reasonable and
necessary expenses of litigation, including reasonable attorneys' fees.
9. ENFORCEABILITY.
I agree that this Agreement shall be governed for all purposes by
the laws of the State of Washington as such law applies to contracts to be
performed within Washington by residents of Washington and that venue for
any action arising out of this Agreement shall be properly laid in King
County, Washington, or in Federal District Court for the Western District of
Washington. If any provision of this Agreement is void or is so declared,
such provision shall be severed from this Agreement, which shall otherwise
remain in full force and effect.
10. NONSOLICITATION.
While employed at active Voice and for a period of one (1) year
from the termination of my employment I will not induce or attempt to
influence directly or indirectly any employee of Active Voice to terminate
his/her employment with Active Voice or to work for me or any other person or
entity.
11. ENTIRE AGREEMENT.
With respect to the subject matter hereof, this is my entire
agreement with Active Voice, and it supersedes (to the extent enforceable)
all previous oral or written communications, representations, understandings,
undertakings, or agreements by or with Active Voice. The term Avtive Voice as
used in this Agreement, includes any entity owned or controlled, directly or
indirectly, by Active Voice.
12. ACKNOWLEDGMENT OF RECEIPT
I acknowledge receipt of a copy of this Agreement. Understood and
agreed to by:
/s/ Xxxxx Xxxxxx Xxxxx
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Employee's Full Name (please print)
/s/ Xxxxx Xxxxxx Xxxxx 12/10/96
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Employee's Signature Date
/s/ Xxxxxx X. Xxxxxxxx
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Corporate officer (please print)
/s/ Xxxxxx X. Xxxxxxxx 12/11/96
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Signature Date
(If you have entered "none" in section 3, do not fill in this section.)
The following are all the non-competition or non-disclosure agreements
which may remain currently binding between myself and my former employers.
Former Employer Dates of Employment
East Design Automation 11/96 to 12/96
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Summit Design 11/96 to 11/96
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to
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Signed: /s/ Xxxxx X. Xxxxx
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Employee's Full Name
12/10/96
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Date
(If you have entered "none" in section 5, do not fill in this section.)
The following are Developments not covered by section 4, in which I have
any right, title or interest, and which were previously conceived or written
either wholly or in part by me, but neither published nor filed in any patent
office, whether or not previously identified to Active Voice.
Description of Documents (if applicable):
Title on Document Date on Document Name of Witness on
Document
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Signed:
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Employee's Full Name
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Date
