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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of 1st day of March, 1996, between GO2NET, INC., a
Delaware corporation (the "Corporation"), and XXXXXXX X. XXXXXXXX (the
"Employee").
WHEREAS, the Corporation desires to employ the Employee as President and
Chief Executive Officer; and
WHEREAS, the Employee desires to accept such employment with the
Corporation upon the terms and conditions offered;
NOW, THEREFORE, in consideration of the mutual covenants and obligations
set forth herein, the parties agree as follows:
1. EMPLOYMENT AND DUTIES.
a. The Corporation desires to employ the Employee and the Employee
desires to accept the positions of President and Chief Executive Officer. As the
President and Chief Executive Officer of the Corporation, the Employee shall
report to the Board of Directors.
b. As President and Chief Executive Officer, the Employee shall perform
such duties and services, consistent with those duties and services ordinarily
and customarily performed by a person holding such position in similar
organizations, as may be assigned to him from time to time by the Board of
Directors.
c. The Employee warrants and agrees to use his best efforts to perform
well and faithfully such duties and other reasonable duties and
responsibilities, consistent with his position properly assigned to him.
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2. DURATION OF AGREEMENT. Subject to the conditions set forth within, this
Agreement shall be in effect for a four-year period (forty-eight months)
commencing on the date of execution of the Agreement.
3. TIME TO BE DEVOTED TO EMPLOYMENT. The Corporation acknowledges that the
Executive is currently engaged in other business activity and that the Executive
shall continue to pursue such other business activities. As such the Employee
agrees to devote such time as the Executive deems necessary and appropriate to
serve the best interests of the Corporation.
4. RESTRICTIONS ON OTHER EMPLOYMENT. During the term of employment, the
Employee agrees that, unless he has the express prior written approval of the
Board of Directors, he shall not accept a membership on a Board of Directors,
act as an officer, employee or consultant, or engage in any other business
activity which is in a similar or competing business of the Corporation that
would in any way conflict with the business of the Corporation that would in any
way conflict with the business of the Corporation or the time needed by the
Employee to perform his duties hereunder.
5. COMPENSATION; BENEFITS; REIMBURSEMENTS.
a. SALARY. Upon appointment as President and Chief Executive Officer by
the Board of Directors of the Corporation, the Employee shall receive a salary
of thirty-six thousand dollars ($36,000) per year, which shall be payable in
equal monthly or bi-monthly installments (or at such other intervals as the
parties may mutually agree at the end of each such month).
b. REIMBURSEMENT OF BUSINESS EXPENSES. The Corporation shall reimburse
the Employee, in accordance with standard business practices of accounting and
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receipts, for all reasonable and necessary business and traveling expenses, and
other disbursements incurred by him for or on behalf of the Corporation in the
performance of his duties hereunder and evidenced by appropriate documentation.
c. BENEFITS. (1) Commencing on the date hereof until such time as
otherwise determined by the Board of Directors of the Company, the Employee
shall be entitled to participate in and enjoy the benefits of any retirement,
pension, health insurance, or other similar plan or plans which may be
instituted by the Corporation for the benefit of its executive officers or
employees generally, upon such term as may be therein provided.
(2) During the term of employment, the Employee shall be entitled to
participate in and enjoy the benefits of any profit sharing, stock option, group
insurance or other similar plan or plans which may be instituted by the
Corporation for the benefit of its executive officers or employees generally,
upon such term as may be therein provided.
(3) During the term of employment, the Employee shall be entitled to
the use of an automobile and a parking space, each of which shall be paid for by
the Corporation.
d. VACATIONS; SICK DAYS. The Employee shall be entitled to a paid
vacation of two (2) weeks during each year of the term of his employment. In
addition, the Employee shall be entitled to as many holidays, sick days and
personal days as are in accordance with the Corporation's policy then in effect
for its executive officers generally (but no less favorable than the
Corporation's policy existing on the date hereof), upon such terms as may be
provided to all executive officers of the Corporation generally.
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6. TERMINATION.
a. WITHOUT CAUSE. The Corporation may terminate this Agreement at any
time upon thirty (30) days notice; however, in the event this provision is
exercised by Corporation, the Employee shall not receive less salary and
benefits than would otherwise be due to him for the balance of the duration of
this Agreement, or six (6) months, whichever is longer.
b. WITH CAUSE. The Corporation may terminate this Agreement for cause,
and the Corporation shall be obligated to pay the Employee his salary only
through the date of his termination. For purposes of this paragraph, "cause"
shall mean that the Employee has (1) misappropriated or done material,
intentional damage to the Corporation, or its business or financial situation or
(2) been convicted of a felony involving moral turpitude.
c. TERMINATION BY DISABILITY. If, during the term of this Agreement, the
Employee becomes disabled so that he is unable substantially to perform his
services hereunder (i) for a period of six (6) consecutive months, or (ii) for
an aggregate of six (6) months within any period of eighteen (18) consecutive
months, this Agreement and the Corporation's obligations hereunder shall
terminate and the Employee shall continue to receive compensation for six (6)
months following the date of disability.
d. VOLUNTARY RESIGNATION. The Employee may voluntarily terminate this
Agreement at any time upon thirty (30) days notice. The Corporation shall then
only be obligated to pay the Employee any compensation due up to the date of
resignation. Paragraph 7 relating to non-disclosure shall immediately become
effective upon resignation.
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7. NON-DISCLOSURE OF BUSINESS INFORMATION. The Employee acknowledges that
by virtue of his employment with the Corporation, the Employee will obtain such
knowledge, know-how, training and experience that is not generally known to
those engaged in the computer or tele-communications industry or with respect to
the Internet or the World Wide Web ("Trade Secrets"), and there is a possibility
that such knowledge, know-how, training and experience could be used by a
competitor of the Corporation to the Corporation's detriment. Therefore, the
Employee covenants and agrees, as follows: (a) The Employee agrees that he will
not, at any time during or after the term of employment, disclose, reproduce,
assign or transfer to any person, firm, corporation or other business entity,
except as required by law, any Trade Secrets concerning the business, finances,
clients, affairs, business plans, strategies, methods, software, hardware,
results from on-going investigations by others, and present and future plans of
the Corporation, any subsidiary or affiliate thereof or any company formed or
funded by the Corporation at any time for any reason or purpose whatsoever,
without the Corporation's express written consent; nor shall the Employee make
use of any of such Trade Secrets for his own purpose or for the benefit of any
person, firm, corporation or other business entity, except the Corporation or
any subsidiary or affiliate thereof. Upon termination of employment for any
reason, Employee will immediately return all books, files, papers, records, and
documents of any kind (including those contained in computer disks) relating to
the business of Corporation; (b) during the term of this Agreement and for a
period of one year thereafter, the Employee shall not, without the prior written
consent of the Corporation, engage in, for any purpose whatsoever, any activity
that competes directly with the Corporation; or (c) the Employee shall not,
without the prior written consent of the Corporation, within the one year period
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following the termination or expiration of this Agreement solicit any employees
of the Corporation to join the Employee as a partner or employee in any
computer, tele-communications, Internet or World Wide Web related enterprise.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE EMPLOYEE. The Employee
represents that he has the capacity and desire to enter into this Agreement, and
the voluntary execution, delivery and performance of this Agreement and
compliance with its provisions will not conflict with or result in any breach of
any of the terms, conditions, obligations, covenants or provisions of, or
constitute a default under, any note, mortgage, agreement, contract or
instrument to which the Employee is a party or by which he may be bound or
affected, including specifically any pre-existing or existing consulting,
employment, or independent contractor arrangements, understandings, or
agreements whether oral or written. Furthermore, the Employee agrees to
indemnify the Corporation against any claims brought by any predecessor employer
alleging breach of employment contract or fiduciary responsibilities.
9. ENFORCEMENT. This Agreement shall be enforced to the fullest extent
permissible under the laws and public policies of the State of Washington.
Accordingly, to the extent a restriction contained in this Agreement is more
restrictive than permitted by the laws of any jurisdiction where this Agreement
may be subject to review and interpretation, the terms of such restriction, for
the purpose only of the operation of such restriction in such jurisdiction,
shall be the maximum restriction allowed by the laws of such jurisdiction and
such restriction shall be deemed to have been revised accordingly herein.
10. REMEDIES FOR BREACH, INJUNCTIVE RELIEF: ARBITRATION.
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a. REMEDY FOR BREACH OF PARAGRAPH 7. It is acknowledged by the Employee
that he will be devoting his work efforts towards establishing relationships for
the Corporation; that Employee will be knowledgeable in all aspects of the
business, including the type of transactions the Corporation is involved with,
thus, the Employee would be able to enter the same business as the Corporation
and unfairly compete against the Corporation to its detriment. Thus, the
restrictions contained in paragraph 7 and the injunction contained in this
paragraph are reasonable and justified. The Employee recognizes that irreparable
injury to the Corporation will inevitably occur in the event of any breach of
the terms and conditions of this Agreement and, specifically, if paragraph 7 is
breached by the Employee. The Employee agrees in such event that the Corporation
shall be entitled, in addition to any other remedies available to it, without
proof of monetary or immediate damage, to maintain an action for an injunction
to restrain any violation of this Agreement by the Employees and all persons
acting for or with the Employee.
11. PRIOR AGREEMENTS/ORAL MODIFICATION. This Agreement supersedes all prior
agreements and constitutes the entire Agreement and understanding between
parties. It may not be amended, modified in any manner or terminated orally; and
no amendment, modification, termination or attempted waiver of any of the
provisions hereof shall be binding unless in writing and signed by the parties
against whom the same is sought to be enforced; provided, however, that the
Employee's compensation may be increased at any time by the Corporation without
in any way affecting any of the other terms and conditions of this Agreement
which in all other respects shall remain in full force and effect.
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12. GOVERNING LAW. This Agreement will be governed by, and construed and
enforced in accordance with the laws of the State of Washington, without giving
effect to the conflict of laws of principles thereof.
13. SUBMISSION TO JURISDICTION. The parties hereby irrevocably agree that
all claims relating to this Agreement shall be submitted exclusively to federal
and state courts located in the County of King and State of Washington and
irrevocably consent to the jurisdiction and venue of such courts and service of
process by certified or registered mail, return receipt requested, directed to
the parties at the addresses set forth below or as otherwise provided by law.
14. BINDING AGREEMENT; BENEFIT. The provisions of this Agreement will be
binding upon, and will inure to the benefit of, the respective heirs, legal
representatives and successors of the parties hereto.
15. WAIVER OF BREACH. The waiver by either party of a breach of any
provision of this Agreement by the other party must be in writing and shall not
operate or be construed as a waiver of any other or subsequent breach by such
other party.
16. ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements or understandings among the parties with respect
thereto. This Agreement may be amended only by an agreement in writing signed by
the parties hereto.
17. HEADINGS. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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18. SEVERABILITY. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
19. ASSIGNMENT. This Agreement is personal in its nature and the parties
hereto shall not, without the consent of the other, assign or transfer this
Agreement or any rights or obligations hereunder; PROVIDED, HOWEVER, that the
provisions hereof shall inure to the benefit of, and be binding upon each
successor of the Corporation whether by merger, consolidation, transfer of all
or substantially all assets, or otherwise.
20. NOTICES. All notices and other communications which are required or
permitted hereunder shall be in writing and shall be delivered personally or
sent by air courier (e.g., Federal Express) or first class certified or
registered mail, postage prepaid, return receipt requested. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of delivery if
personally delivered; on the business day after the date when sent if sent by
air courier; and on the third business day after the date when sent if sent by
mail, in each case addressed to such party as set forth below or in accordance
with the latest unrevoked direction from such party.
If to the Employee:
Xxxxxxx X. Xxxxxxxx
000 Xxxxx Xxxxxx
#000
Xxxxxxx, Xxxxxxxxxx 00000
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If to the Corporation:
GO2NET, INC.
000 Xxxxx Xxxxxx
#000
Xxxxxxx, Xxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
GO2NET, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: President
XXXXXXX X. XXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxx
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