EXHIBIT 10.7
COMPENSATION AGREEMENT
This Compensation Agreement (this "Agreement") is entered into as of the
12th day of October, 1998 (the "Effective Date") by and between Interactive
Objects, Inc., a Washington corporation (the "Company"), and Xxxx Western (the
"Employee").
1. Employment. Company employs and Employee accepts employment on the
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terms and conditions in this Agreement.
2. Duties. Employee is employed in the capacity of Director of
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Development. Employee shall perform the duties customarily performed by a
Director of Development and shall report to the Company's Chief Executive
Officer and President. 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
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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
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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:
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a. Employee's annual salary initially shall be $115,000 per year (or
$9,583.33 per month), 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 shall receive a signing bonus in the form of an option to
purchase 10,000 shares of Company Common Stock, which option shall vest 100
percent ninety (90) days from the Effective Date and shall be subject to the
other terms and conditions of the Company's 1998 Stock Option Plan. In
addition, the Company shall grant to Employee a stock option to purchase up to
100,000 shares of Common Stock, which shall vest at a rate of twenty-five
percent (25%) per year over four years on each anniversary of the Effective
Date, and shall be subject to the other terms and conditions of the Company's
1998 Stock Option Plan. The exercise price for the above two options shall be
the last trade price of the Common Stock as reported on the OTC Bulletin Board
on the Effective Date.
c. 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. Employee's eligibility to participate, if at all
as determined by the Board in its sole discretion, in the Company's executive
bonus plan for calendar year 1998 shall be pro rated from the Effective Date.
d. 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
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(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
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vacation and personal days 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
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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
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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.
10. Termination. Employee's employment may be terminated before the
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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
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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 weeks' 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
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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
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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
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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
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Employee's death.
11. Indemnification. Company shall defend and indemnify Employee from and
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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.
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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. No Conflicting Agreements. Employee represents and warrants to the
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Company that he is not currently a party to, bound by or otherwise subject to
any agreement, understanding or obligation, whether written or oral, with any
third party that may be in conflict with the terms of this Agreement or his
duties and obligations as an employee of the Company. In particular, and without
limiting the foregoing, Employee represents and warrants that he is not subject
to any employment agreement, non-competition agreement or non-disclosure with
any third party as of the date of this Agreement. Employee understands and
acknowledges that this Agreement is being entered into in part on the material
reliance by the Company of the factual accuracy of this representation and that
the Company would not be
entering into this Agreement absent Employee's representation. Employee shall
indemnify and hold harmless the Company from any liability, cost or expense,
including attorneys' fees, arising out of any misrepresentation or misstatement
to the foregoing.
14. Dispute Resolution. All disputes between Employee and Company that
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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
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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
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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
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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
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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
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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
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guarantee continued employment, require discharge only for cause or require any
particular corrective action or discharge procedures.
15. Governing Law. This Agreement shall be governed by the internal laws
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of the state of Washington without giving effect to provisions thereof related
to choice of laws or conflict of laws.
16. Saving Provision. If any part of this Agreement is held to be
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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.
17. Waiver. No waiver of any provision of this Agreement shall be valid
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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.
18. Assignment; Successors. Company may assign its rights and delegate
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its duties under this Agreement. Employee may not assign Employee's rights or
delegate Employee's duties under this Agreement.
19. Binding Effect. This Agreement is binding upon the parties and their
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personal representatives, heirs, successors and permitted assigns.
20. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be an original and all of which, taken
together, shall constitute a single agreement.
21. Legal Representation. In connection with this Agreement, the law firm
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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.
22. Complete Agreement. This Agreement, together with the attached
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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 WESTERN
/s/ Xxxx Western
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COMPANY: INTERACTIVE OBJECTS, INC.:
By: Xxxxxx X. Xxxxxxx
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Its: Chief Financial Officer
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EXHIBIT A
INTERACTIVE OBJECTS
INVENTION, CONFIDENTIALITY,
NONRAIDING AND NONCOMPETITION AGREEMENT
Effective on _____________, 1998 ("Effective Date"), I, the undersigned
employee, agree as follows.
INTERACTIVE OBJECTS, INC. ("Interactive Objects") is in the business of,
among other activities, developing and publishing computer software products,
and performing research and development work for itself and other entities.
During the course of my future employment by Interactive Objects, I, the
undersigned employee of Company ("Employee"), acknowledge that I have been and
will be exposed to and become familiar with various aspects of software
programming, concepts, designs, procedures, processes and other forms of
information proprietary to Company.
In consideration of the terms of my Employment Agreement with Company,
effective on the Effective Date and other good and valuable consideration; I
hereby agree on behalf of myself, my heirs, executors, legal representatives and
assigns:
1. Definitions. For purposes of this Agreement:
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(a) "Company" means Interactive Objects, Inc., having its principal
place of business at Redmond, Washington, its successors and assigns.
(b) "Confidential Information" means any type of information or
material disclosed to or known by me as a consequence of or through my
employment or other retention by Company (including information conceived,
originated, discovered, or developed in whole or in part by me), which is not
generally known by non-Company personnel and including but not limited to
information which relates to research, development, trade secrets, know how,
Inventions, technical data, software, manufacture, purchasing, accounting,
engineering, marketing, merchandising or selling, and information entrusted to
Company or its principal officers and employees by third parties. Such
Confidential Information shall also include but is not limited to the type of
information which may be listed on Exhibit A of this Agreement. INFORMATION
GENERALLY KNOWN OR READILY ASCERTAINABLE BY PROPER MEANS AT OR AFTER THE TIME
THE UNDERSIGNED FIRST LEARNS OF SUCH INFORMATION, OR GENERAL INFORMATION OR
KNOWLEDGE WHICH I WOULD HAVE LEARNED IN THE COURSE OF SIMILAR EMPLOYMENT OR WORK
ELSEWHERE IN THE TRADE, SHALL NOT BE DEEMED TO BE CONFIDENTIAL INFORMATION. In
any dispute over whether information is Confidential Information or not, it
shall be my burden to show that such information is not Confidential
Information.
(c) "Inventions" means original works of authorship, discoveries,
concepts, ideas and improvements to existing technology, and all other subject
matter ordinarily comprehended by the term "invention", whether or not
copyrightable or patentable, including, but not limited to, computer programs,
processes, machines, products, compositions of matter, formulae, algorithms, and
techniques, as well as improvements thereof, and expressions thereof, which, in
whole or in part, are conceived, discovered or developed by me, either alone or
with others, and which (i) relate directly to the business of Company or to
Company's actual or demonstrably anticipated research or development; or (ii)
incorporate, are developed using, or are otherwise based upon any Confidential
Information; or (iii) are made, conceived, discovered or
developed during times other than my own time or with the use of any Company
equipment, supplies or facilities, including Company resources or personnel; or
(iv) result from any work performed by me for Company.
2. Records of Inventions and Confidential Information. I shall promptly,
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in such form and detail as is prescribed by Company, record and keep a complete
and permanent written record of information relating to the conception,
origination, discovery or development of Confidential Information and
Inventions.
3. Obligations of Employee Regarding Inventions.
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(a) I shall disclose to Company promptly and fully and by a written
report completely describing each in detail all of my original works of
authorship, discoveries, concepts, ideas and improvements to existing
technology, and all other subject matter ordinarily comprehended by the term
"invention", whether or not within the definition of Inventions.
(b) With respect to Inventions, and without additional or further
consideration, (i) I shall apply, at Company's request and expense, for United
States and foreign design or letters patent or other legal protection of
intellectual property either in my name or otherwise as Company shall direct;
and (ii) I shall assign (and do hereby assign) to Company all of my rights to
such Inventions, and to applications for United States copyright and foreign
design or letters patent or other legal protection of intellectual property
granted upon such Inventions, and hereby agree that Company and/or its
authorized agent shall have full control over all such applications for patents
or other legal protection of intellectual property, including without limitation
the right to amend or abandon the same; and (iii) I shall sign and deliver
promptly to Company such written instruments, testify in any legal proceedings,
and do such other acts, as may be necessary in the opinion of Company to secure
and maintain for Company exclusive rights in United States and foreign
copyrights, design or letters patent or other legal protection of intellectual
property for all such Inventions; and (iv) I shall waive (and hereby do waive)
any moral rights I have or may have in Inventions.
Except as provided in Section 3(a) above, this Agreement does not apply to
an invention for which no equipment, supplies, facility, or trade secret
information of Company was used and which was developed entirely on my own time,
unless (a) the invention relates (i) directly to the business of Company, or
(ii) to Company's actual or demonstrably anticipated research or development, or
(b) the invention results from any work performed by me for the Company.
(c) With respect to any invention which does not constitute an
Invention, upon the written request of Employee, Company will acknowledge in
writing that Company does not have any interest in such invention as described
in the request.
4. Rights of Company Regarding Inventions. Company shall have the
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exclusive right to all Inventions, without additional or further consideration
to me, including but not limited to the right to own, make, use, sell, have
made, rent, lease or lend, copy, prepare derivative works of, perform or display
publicly all Inventions.
5. Right of First Refusal Regarding Future Inventions. I hereby grant to
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the Company, for a period of twelve (12) months following termination of this
Agreement, a right of first refusal with respect to the commercialization or
acquisition of any inventions, original works of authorship, discoveries,
concepts, ideas and improvements to existing technology, and all other subject
matter ordinarily comprehended by the term "invention", whether or not
copyrightable or patentable, including, but not limited to, computer
programs, processes, machines, products, compositions of matter, formulae,
algorithms, and techniques, as well as improvements thereof, and expressions
thereof, which, is developed exclusively or primarily by me, directly or
indirectly through any entity formed or controlled by me, during such period.
6. Confidentiality. Except as required in my duties to Company, I shall
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never directly
or indirectly use, disseminate, lecture upon, publish articles concerning, make
known, or otherwise disclose or make available to any person, firm, corporation
or other entity not confidentially bound to Company, any Confidential
Information (including Confidential Information related to Inventions) without
written permission from Company. If I am served with any subpoena or other
compulsory judicial or administrative process calling for production of
Confidential Information, I will immediately notify Company in order that it may
take such action as it deems necessary to protect its interest. In such event, I
will provide reasonable cooperation to Company, but it shall be Company's sole
obligation and expense to take action necessary to protect its interests. Should
Company fail to take such action or be unsuccessful in preventing the production
of Confidential Information, this Agreement authorizes me to release
Confidential Information pursuant to subpoena or other compulsory judicial or
administrative process.
I understand it is Company's policy not to improperly obtain or use
confidential, proprietary or trade secret information that belongs to third
parties (including my former employers and anyone who entrusted confidential,
proprietary or trade secret information to me or my former employers). I shall
never knowingly improperly obtain, attempt to obtain, use, disseminate, disclose
or transfer to Company confidential, proprietary or trade secret information
that belongs to third parties. This paragraph shall not limit my right to use
my general knowledge and experience, whether or not gained while employed by any
third party.
7. Company Inventions and Confidential Information. I understand and
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agree that this Agreement applies to all Inventions and Confidential
Information. I understand this Section 7 does not apply to an invention for
which no equipment, supplies, facility, or trade secret information of Company
was used and which was developed entirely on my own time, unless (a) the
invention relates (i) directly to the business of Company, or (ii) to Company's
actual or demonstrably anticipated research or development, or (b) the invention
results from any work performed by me for Company.
8. Nonraiding of Employees. I recognize that Company's workforce is a
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vital part of its business. Therefore, so long as I am an employee of Company,
or am retained by Company as an independent contractor or consultant, and for
twenty-four (24) months after my employment, independent contractor and/or
consulting relationships with Company terminate (regardless of the reason they
terminate), I will not solicit, directly or indirectly, any employee to leave
his or her employment with Company. For the purposes of this Agreement, the
phrase "shall not solicit, directly or indirectly," includes, without
limitation, that I (a) shall not disclose to any third party the names,
backgrounds or qualifications of any Company employees or otherwise identify
them as potential candidates for employment; (b) shall not personally or through
any other person approach, recruit or otherwise solicit employees of Company to
work for any other employer; and (c) shall not participate in any pre-employment
interviews with any person who was employed by Company while I was employed or
retained by Company.
9. Noncompetition. I recognize and agree that Company has many
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substantial, legitimate business interests that can be protected only by my
agreeing not to compete with Company under certain circumstances. These
interests include, without limitation, Company's contacts and relationships with
its customers, Company's reputation and goodwill in the industry, the financial
and other support Company provides me, and Company's rights in its Confidential
Information. I therefore agree as follows:
(a) Noncompetition While Related to Company. So long as I am an
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employee of Company, or am retained by Company as an independent contractor or
consultant, I will not, directly or indirectly, compete with Company in any way.
(b) Noncompetition After Relationships with Company Terminate. After
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my employment, independent contractor and/or consulting relationships with
Company terminate (regardless of the reason they terminate), and for the length
of time provided in subparagraph 7(e) below, I will not, directly or indirectly,
in any geographic area where Company's software products are then marketed, sold
or distributed: (a) publish or propose to publish Competing Software, (b) design
or develop Competing Software, (c) work for or with, or provide services or
information to, any person or entity that (i) publishes or
proposed to publish Competing Software, or (ii) is designing or developing
Competing Software, or (d) contract with or otherwise compete with the Company
with respect to any existing client or contract or any future client or contract
with respect to which the company has engaged in and continues to engage in
business discussions or negotiations.
(c) Competing Software. For purposes of this Agreement, Competing
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Software means computer software that competes or will compete with any of
Company's then existing or reasonably anticipated software products with which I
have personal involvement in the course of my employment and/or retention as a
consultant or independent contractor by Interactive Objects.
The foregoing notwithstanding, Company may expand the definition of Competing
Software, at Company's option, to include all computer software that competes or
will compete with Company's then-existing or reasonably anticipated software
products. To exercise this option to expand Company must, within 30 days after
my relationships with Company terminate, giving me notice of its election to
expand and pay me an amount equal to 25% of the highest base salary rate Company
paid me in the last year of my employment.
(d) Competing Companies with Multiple Divisions. Companies that (i)
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publish or propose to publish Competing Software, or (ii) are designing or
developing Competing Software are referred to as "Competing Companies." Where a
Competing Company has multiple divisions, business units or product work groups,
the noncompetition provisions of subparagraph 7(b) above shall apply only to
those divisions, business units or product work groups that are involved with
Competing Software, provided that I and the competitor provide written
assurances satisfactory to Company that the information and work product I
provide to other divisions, business units or product work groups of the
competitor will not be shared, directly or indirectly, or intentionally or
unintentionally, with the divisions, business units or product work groups
involved with Competing Software.
(e) Term of Noncompetition. The noncompetition provisions of
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subparagraph 7(b) above shall apply for a period of twelve (12) months after my
relationships with Company terminate, regardless of the reasons they terminate.
Company may extend this period of time for an additional 12 months, at its
option. To exercise this option to extend Company must, at least 30 days before
the first 12 month period expires, giving me notice of its election to extend
and pay me an amount equal to 50% of the highest base salary rate Company paid
me in the last year of my employment.
(f) Other Rights. I understand that in cases where the noncompetition
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provisions of this paragraph 7 do not apply, I am still subject to all other
obligations I have to the Company, including my obligations related to the
Company's Inventions, copyrights and Confidential Information.
10. Disclosure of Proposed Employment. Before I undertake or agree to
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undertake any other employment, consultancy or independent contractor
relationship, for myself or with a third party, that will utilize or involve
subject matter related to activities of the type in which Company is involved, I
shall give Company reasonable advance notice and disclose the proposed
employment, consultancy or independent contractor relationship to Company. In
addition, I will notify the Company in writing in the event I am approached or
otherwise solicited or contacted by any client or subcontractor of the Company
with regard to my engagement or employment by it. My duty to give notice and
disclose under this paragraph shall apply during my employment or retention as
an employee, independent contractor or consultant by Company, and during the
period of time the noncompetition provisions of subparagraph 7(b) above are in
effect.
11. Ownership of Records. Upon termination of my employment, independent
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contractor or consulting relationship(s) with Company, or earlier if Company
requests, I will deliver to and leave with Company any and all objects,
materials, devices, or substances (including without limitation all documents,
records, notebooks, recordings, drawings, prototypes, models, schematic
diagrams, computer programs (regardless of the media on which they are stored)
and similar repositories or objects) which describe, depict, contain,
constitute, reflect or record Confidential Information, and all copies thereof,
then in my possession or
under my control, whether or not prepared by me.
12. Saving Provision. I believe that the terms of this Agreement,
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including the duration, scope and geographic extend of the nonraiding and
noncompetition provisions, is fair and reasonably necessary to protect Company's
client relationships, employee relationships, goodwill, Confidential Information
and other protectable interests in light of all of the facts and circumstances
of my relationship with Company. In the event a court declines to enforce any
of the terms of this Agreement they shall be deemed to be modified to restrict
me to the maximum extent that the court finds enforceable.
13. Injunctive Relief. I acknowledge that the breach or threatened breach
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of this Agreement would cause irreparable injury to Company that could not be
adequately compensated by money damages. Accordingly, Company may obtain a
restraining order and/or injunction prohibiting my breach or threatened breach
of this Agreement, in addition to any other legal or equitable remedies that may
be available. I acknowledge that, if my employment or other relationships with
Company end, my experience and capabilities are such that I can obtain
employment in business activities that do not violate this Agreement, and that
an injunction to enforce this Agreement will not prevent me from earning a
reasonable livelihood.
14. No Guarantee of Employment. This Agreement may not be construed as an
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employment agreement, as a guarantee of continued employment, or as a limitation
upon Company's discretion with respect to the termination of my employment, it
being understood that my employment is terminable at will by either myself or
Company.
15. Consent to Notification. Company and I consent to the giving of
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notification to third parties of the existence and terms of this Agreement.
16. Legal Expense. In any dispute between us arising out of or relating
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to this Agreement or our employment relationship, the prevailing party shall be
entitled to recover from the other party reasonable sums as attorneys' fees and
expenses, including expert witness fees, at trial and on appeal.
17. Waiver of Breach. The waiver of any breach of this Agreement or
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failure to enforce any provision of this Agreement shall not waive any later
breach.
18. Miscellaneous.
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(a) This Agreement may be modified, supplemented and/or amended only
by a writing that both the Company and I sign. This Agreement, as it may be so
amended, is the complete and final expression of my agreement with Company on
the subjects covered, and shall control over any other statement, representation
or agreement on these subjects.
(b) The headings of the sections and paragraphs of this Agreement are
inserted for convenience only and shall not control or affect the meaning or
construction of any of its provisions.
(c) The rights and obligations under this Agreement shall be governed
by the internal laws of the state of Washington without regard to the provisions
thereof related to choice of laws or conflict of laws.
(d) Venue and jurisdiction of any lawsuit involving this Agreement or
my employment shall exist exclusively in state and federal courts in King
County, Washington, unless injunctive relief is sought by Company and, in
Company's judgment, may not be effective unless obtained in some other venue.
(e) My obligations under this Agreement supplement and do not
supersede or limit other obligations I have to Company or other rights or
remedies available to Company, including without limitation under the Washington
Uniform Trade Secrets Act.
(f) The existence of any claim or cause of action by myself against
Company shall not constitute a defense to the enforcement of this Agreement or
excuse performance of the obligations I have assumed hereunder.
(g) In case any one or more of the provisions contained in this
Agreement shall, for any reason, be held to be totally invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement, but this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
19. Survival. This Agreement shall survive the termination of my
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relationship with Company, however caused.
Dated as of the date first mentioned above.
EMPLOYEE: XXXX WESTERN
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Accepted by:
INTERACTIVE OBJECTS, INC.
By:
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Its:
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SCHEDULE A-1
EXAMPLES OF INTERACTIVE OBJECTS "CONFIDENTIAL INFORMATION"
Interactive Objects Confidential Information includes but is not limited to the
following:
1. Source and object code for products.
2. Product documentation.
3. Future product development plans.
4. Marketing information including customer information.
5. Personnel information including information about staff involved in product
development projects.
