1
EXHIBIT 10.16
FORM OF EMPLOYMENT AGREEMENT
This Agreement ("Agreement") is made and entered into this the ____ day
of _________, 1999, by and between YOUcentric, Inc. (formerly Sales Vision,
Inc.), a North Carolina corporation (the "Company") and ____________
("Employee").
WHEREAS, the Company is engaged in the business of sales force
automation;
WHEREAS, the Company is entering into a certain Series A Stock Purchase
Agreement ("Purchase Agreement") with affiliates of Technology Crossover
Ventures ("Investor");
WHEREAS, this Agreement is in partial consideration for Investor
entering into the Purchase Agreement and related agreements with the Company and
Employee.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Position and Responsibilities. Employee shall be employed as of
___________ ___, 1999 as ____________, or in such other capacity as may be
designated by the Company from time to time. While so employed, Employee agrees
to devote his full time and attention to carrying out his duties and
responsibilities under this Agreement and shall use his best efforts, skills and
abilities to further the interests of the Company. Employee agrees to comply
with all policies, standards and regulations of the Company now existing or
hereafter promulgated.
2. Noncompetition.
2.1 It is recognized and understood by the parties hereto that
Employee, through his association with the Company as a employee, shall acquire
a considerable amount of knowledge and good will with respect to the business of
the Company, which knowledge and goodwill are extremely valuable to the Company
and which would be extremely detrimental to the Company if used by Employee to
compete with the Company. It is, therefore, understood and agreed that, because
of the nature of the business of the Company, it is necessary to afford fair
protection to the Company from such unfair competition by Employee.
Consequently, Employee covenants and agrees that during the entire Restricted
Period (as defined in Section 2.5 hereof, including any extensions of the
Restricted Period for a period of time equal to any period(s) of time during
which Employee is violating his covenants under this Section 2 or any period(s)
of time during which the Company is pursuing legal action to enforce Employee's
covenants under this Section 2) Employee shall not compete (as defined in
Section 2.2 hereof), directly or indirectly, with the Company by engaging in any
line of business (as defined in Section 2.3 hereof) in which on the
2
Termination Date (as defined in Section 2.6 hereof) the Company is engaged, or
is planning to engage, in any Prohibited Location (as defined in Section 2.4
hereof).
2.2 The terms "Compete" and "Competition," as used herein, shall be
deemed to include, without limitation, becoming or being an employee, owner,
partner, consultant, agent, stockholder, Employee, officer of any person,
partnership, firm, Company or other entity (other than the Company) which
engages directly in (i) the business of sales force automation and/or (ii) any
other business conducted by the Company immediately prior to the date of
termination of Employee's employment or in which the Company shall at the
Termination Date be actively preparing to enter. Notwithstanding the foregoing,
ownership of five (5%) percent or less of any class of securities of an entity
shall not constitute competition with the Company.
2.3 The phrases "engage in a business" or "engage in a line of
business" and similar phrases shall be deemed to include those aspects of
marketing or otherwise selling products or services, researching, writing,
developing, designing, programming, distributing, testing or manufacturing
products or services, providing technical services, developing software,
administering networks or databases, or otherwise preparing to market, sell or
research products or services which Employee performed for the Company in the
one (1) year period prior to the Termination Date.
2.4 The term "Prohibited Location" means any or all of the following
geographic areas: (i) anywhere within the United States; (ii) anywhere within
North Carolina; and (iii) anywhere within fifty (50) miles of Charlotte, North
Carolina.
With respect to the covenant contained in this Section 2, it is
acknowledged by the Employee that the Company's competition in providing sales
force automation products and services is located throughout the nation and
competes in a nationwide market, and that unfair competition can only be
prevented by enforcing this specific covenant in these prohibited locations
specifically set forth in Section 2.4.
2.5 The term "Restricted Period" shall mean the period commencing on
the date of this Agreement and ending on the one (1) year anniversary of the
Termination Date as defined in Section 2.6; provided that, the Restricted Period
shall be extended for a period of time equal to any period(s) of time during
which the Company is pursuing legal action to enforce Employee's covenants under
Section 2.
2.6 The term "Termination Date" means the date on which the Employee's
employment with the Company terminates for any reason or no reason.
3. Non-Solicitation/Interference.
2
3
3.1 During the entire Restricted Period (as defined in Section 2.5
hereof, including any extensions of the Restricted Period for a period of time
equal to any period(s) of time during which Employee is violating his covenants
under this Section 3 or any period(s) of time during which the Company is
pursuing legal action to enforce Employee's covenants under this Section 3),
Employee shall not, directly or indirectly, solicit, interfere with, or seek to
interfere with the relationship between the Company and any customers of the
Company, in any Prohibited Location (as defined in Section 2.4 hereof).
3.2 During the entire Restricted Period (as defined in Section 2.5
hereof, including any extensions of the Restricted Period for a period of time
equal to any period(s) of time during which Employee is violating his covenants
under this Section 3 or any period(s) of time during which the Company is
pursuing legal action to enforce Employee's covenants under this Section 3),
Employee shall not, directly or indirectly, hire, contract with, solicit, induce
or attempt to influence, any individual or entity who is an employee,
contractor, agent or representative of the Company to terminate or otherwise
impair his/her employment or relationship with the Company, in any Prohibited
Location (as defined in Section 2.4 hereof).
4. Remedies. Employee acknowledges and agrees that any breach of the
foregoing provisions of this Agreement will result in irreparable damage and
continuing injury to the Company. Therefore, in the event of any breach or
threatened breach of any of the foregoing provisions of this Agreement by
Employee, Employee acknowledges and agrees that the Company shall be entitled,
without limiting any other available legal or equitable remedy (whether
conferred by statute or otherwise), to an injunction to be issued by any court
of competent jurisdiction enjoining and restraining the Employee from committing
any violation or threatened violation of this Agreement, and Employee hereby
consents to the issuance of such injunction. The Company shall not be required
to post any bond to obtain any such injunction. The Employee agrees that all
remedies available to the Company by reason of a breach of any of the foregoing
provisions of this Agreement are cumulative and that none is exclusive and that
all remedies may be exercised concurrently or consecutively at the option of the
Company, as the case may be.
5. Reasonableness. Employee acknowledges and agrees that the foregoing
covenants and provisions of this Agreement are reasonably necessary for the
protection of the Company and that such covenants and provisions are reasonably
limited with respect to the activities prohibited, the duration thereof, the
geographical area thereof, the scope thereof and the effect on the Employee and
the general public. Employee further acknowledges and agrees that the purpose
and effect of such restrictive covenants and provisions is solely to protect the
Company for a limited period of time from unfair competition by the Employee,
and that the Employee's employment with the Company is conditioned upon the
Employee agreeing to abide by and be bound by all of the covenants and
provisions contained in this Agreement.
3
4
6. Full Enforcement. If any part of any covenant or provision contained in
this Agreement is determined by a court of competent jurisdiction, or by any
arbitration panel to which a dispute is submitted, to be invalid, illegal or
incapable of being enforced, then the court or arbitration panel so deciding
shall interpret such provisions in a manner so as to enforce them to the fullest
extent of the law.
7. Severability. The provisions of this Agreement shall be deemed
severable, and the invalidity or unenforceability of any provision (or part
thereof) of this Agreement shall in no way affect the validity or enforceability
of any other provisions (or remaining part thereof). Without limiting the
foregoing, in the event the restrictions on interference and solicitation as set
forth in Section 3 or the geographic scope as set forth in Section 2 are
determined to be invalid or unenforceable, the provisions of these Sections
shall be deemed severable, and the invalidity or unenforceability of any
provision (or part thereof) shall in no way effect the validity or
enforceability of any other provision (or remaining part thereof).
8. Entire Agreements. This Agreement supersedes all prior agreements and
understandings, oral or written, between the Company and Employee with respect
to the subject matter hereof (but not any Confidentiality and/or Assignment of
Inventions Agreement to which the Company and Employee may be parties).
9. Amendments. No change, modification, termination or attempted waiver of
any of the provisions of this Agreement shall be binding upon any party hereto
unless reduced to writing and signed by the party against whom enforcement is
sought.
10. Waiver. Failure to insist upon strict compliance with any of the terms,
covenants or conditions hereof shall not be deemed a waiver of such terms,
covenants or conditions, nor shall any waiver or relinquishment or any right or
power granted hereunder of any particular time be deemed a waiver or
relinquishment of such rights or powers at any time or times.
11. Counterparts. Any number of counterparts of this Agreement may be
signed and delivered, each of which shall be considered an original and all of
which, together, shall constitute one and the same instrument.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina, without reference to
its conflict of law provisions.
13. Venue. Any litigation under this Agreement may be brought by the
Company in the State of North Carolina, notwithstanding that Employee is not at
that time a resident of the State of North Carolina and cannot be served process
within that state. Employee hereby irrevocably consents to the jurisdiction of
the courts of North Carolina (whether federal or state courts) over his or her
person.
4
5
14. Binding Effect. The provisions of this Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their heirs, assigns
and successors in interest.
15. Notices. Any notice required to be given hereunder shall be sufficient
if in writing and sent by certified or registered mail, postage prepaid, return
receipt requested. In case of Employee, to Employee's address as shown on the
Company's records, and in the case of the Company, to its principal office in
the State of North Carolina.
16. Headings. The headings contained in this Agreement are for reference
purposes only and shall not be deemed interpretation of this Agreement.
17. Gender. The use of the masculine gender is for convenience only and
shall be deemed to refer to the applicable gender.
18. Employment At Will. This Agreement is not intended to nor does it
create any employment contract for a specified term, and Employee's employment
may be terminated by either Employee or the Company at any time, with or without
cause. The Company shall have no liability to Employee in the event of said
termination, except for compensation accrued and unpaid at the time of
termination. Although Employee's job duties, title, compensation and benefits,
as well as the Company's personnel policies and procedures, may change from time
to time the "at will" nature of Employee's employment may only be changed in an
express written agreement signed by Employee and a duly authorized officer of
the Company.
19. Survival. The provisions of this Agreement shall survive the
termination of Employee's employment for any reason or no reason.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
EMPLOYEE: YOUCENTRIC, INC.
___________________________ (SEAL) By: _____________________________
Name: ___________________________
___________________________ Title: __________________________
Type or Print Name
5
