EXHIBIT 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is made and entered into by
and between INTERLAND, INC., a Georgia corporation having its principal
executive offices located at the business address of 000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (the "COMPANY"), and Will Xxxxxx, an
individual residing at the address indicated in EXHIBIT 1 ("EXECUTIVE"). Company
and Executive enter into this Agreement as of the date they each have signed it,
but the Agreement shall be effective as of the date established pursuant to
Section 2.1, below.
WHEREAS, Company desires to continue to employ Executive with the title
indicated in EXHIBIT 1 and the parties wish to establish certain terms and
conditions of such employment by entering into this Agreement; and
WHEREAS, Executive desires to continue such employment with Company on the
terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, the parties hereby agree as follows:
1. Employment; Regular Compensation.
1.1 Base Salary. Company agrees to employ Executive with the title
indicated in EXHIBIT 1 and Executive agrees to serve in such capacity on the
terms and conditions set forth in this Agreement. Company shall pay Executive an
initial base salary (the "BASE SALARY") as set forth in EXHIBIT 1. The Base
Salary is expressed as an annual amount solely for reference purposes, and shall
be payable to Executive on a bi-weekly basis. In its sole discretion, the
Company may change Executive's compensation.
1.2 Bonus. Executive shall be eligible for annual discretionary
bonuses in an amount up to fifty percent (50%) of Executive's Base Salary then
in effect (the "MAXIMUM BONUS"), payable in accordance with the Company's bonus
policy applicable to senior executives (the "BONUS POLICY").
1.3 Expenses. During the term of his employment hereunder, Executive
shall be entitled to receive prompt reimbursement for all reasonable expenses
incurred by him in performing services hereunder, including, without limitation,
all reasonable travel expenses (including air fare, hotels and other incidental
travel expenses) incurred by Executive in connection with his travel between
Connecticut and Atlanta, Georgia during the six month period following the
Agreement Date; provided, however, that, during the six month period following
the Agreement Date, Executive shall be entitled to, and the Company shall
reimburse Executive for, the cost of one economy-class airfare each week for
trips between Connecticut and Atlanta, Georgia; and provided, further, that
Executive shall be entitled to reimbursement only in accordance with the
Company's expense reimbursement policy
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1.4 Benefit Plans. Executive shall be entitled to participate in or
receive benefits under any employee benefit plan or arrangement currently
available, or made available by the Company in the future, to its executives
and/or key management employees, subject to and on a basis consistent with the
terms, conditions and overall administration of such plan or arrangement. The
Company shall not make any changes in any employee benefit plans or arrangements
in effect on the date hereof or during the term of this Agreement in which
Executive participates (including, without limitation, any pension and
retirement plan, supplemental pension and retirement plan, savings and profit
sharing plan, stock ownership plan, stock purchase plan, stock option plan, life
insurance plan, medical insurance plan, disability plan, dental plan,
health-and-accident plan or arrangement) which would adversely affect
Executive's rights or benefits thereunder, unless such change occurs pursuant to
a program applicable to all executives of the Company and does not result in a
proportionately greater reduction in the rights of or benefits to Executive as
compared with any other executive of the Company of the same rank as Executive.
1.5 Vacation. Executive shall be entitled to 160 hours of paid
vacation time per year which will accrue and be available in accordance with the
Company's "time off policy".
2. Effective Date; Indefinite Term.
2.1 This Agreement shall be deemed in full force and effect as of the
date it is executed by the parties below, along with the execution of any
exhibits hereto;
2.2 This Agreement has an indefinite term, and Executive's employment
by Company hereunder may be terminated at will by either party at any time, with
or without Cause (as defined in Section 6.1, below) or any reason, voluntary or
involuntary, and with or without prior notice. Certain provisions of this
Agreement, however, as more fully set forth in Section 5, below, provide for the
payment of benefits to Executive upon the specified circumstances of termination
of Executive's employment with Company, and certain other provisions, as more
fully set forth below in Section 11, below, may continue in effect beyond the
date of such termination. Executive expressly acknowledges and agrees that
employment with Company is on an "at will" basis, and that this Agreement does
not provide a guarantee of continued employment, notwithstanding any other
provision in this Agreement.
3. Duties. Executive shall report to Xxxxxxx X. Xxxxxx, President and Chief
Executive Officer, or such other individual as may be designated from time to
time by the Board of Directors (the "BOARD"). Executive shall faithfully and
diligently perform all such acts and duties, and furnish such services, as are
assigned to Executive by such supervising officer or such other individual as
may be designated by the Board.
4. Efforts; Conflicts of Interest. During Executive's employment by
Company, Executive shall devote his full business time and efforts to Company
and its business during normal business hours, and shall safeguard and promote
its lawful interests; provided, however, that for a period of not more than six
months from the Agreement Date Executive may devote up to twenty-five percent
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(25%) of this time during normal work hours to the winding-up of Web Internet,
LLC; provided, however, that during this six-month period, the Company and
Executive acknowledge that Executive may spend a majority of his normal working
hours working from Connecticut. During Executive's employment by Company,
Executive shall not, either directly or indirectly, engage in or enter into any
business or perform any services for any other person, firm, association, or
corporation that conflicts with Executive's efforts to Company or with Company's
business interests, except for: (a) serving on the board of directors of any
other entity that is not in competition with Company (subject to Company's
approval, which shall not be unreasonably withheld or delayed); (b) activities
approved in writing in advance by the Executive's supervising officer or the
Board, which approval shall not be unreasonably withheld or delayed; or (c)
passive investments in entities that do not involve Executive providing any
advice or services to the businesses in which the investments are made, or which
do not violate Company policy, including without limitation any policy relating
to conflicts of interest or business ethics.
5. Benefits Upon Termination of Employment.
5.1 By Company for Cause or by Executive Without Good Reason. If
Executive's employment is terminated by Company for Cause or by Executive
Without Good Reason (as defined in Section 6.5, below), then Company's
obligation to pay compensation and benefits under this Agreement shall
immediately terminate, except that: (a) Company shall pay to Executive and, if
applicable, Executive's heirs, any earned but unpaid Base Salary through such
termination date; (b) Company shall pay to Executive any earned but unpaid
incentive compensation or bonuses through the termination date, subject to the
terms of the applicable bonus plan, including without limitation any eligibility
requirements or any limitations on such payment under applicable law; and (c)
Company shall permit Executive to receive continuation of the benefits as set
forth in Section 5.5, below, to the extent applicable. Under such circumstances,
no further payments or benefits (except as otherwise required by law) shall be
provided to Executive. The terms "Cause" and "Without Good Reason" shall have
the meaning set forth in Section 6, below.
5.2 By Company for Nonperformance Due to Disability. If Executive's
employment is terminated by Company for Nonperformance Due to Disability, then
Company's obligation to pay compensation and benefits under this Agreement shall
immediately terminate, except that: (a) Company shall pay to Executive and, if
applicable, Executive's heirs, any earned but unpaid Base Salary through such
termination date; (b) Company shall pay to Executive any earned but unpaid
incentive compensation or bonuses through the termination date, subject to the
terms of the applicable bonus plan, including without limitation any eligibility
requirements or any limitations on such payment under applicable law; (c)
Company shall provide Executive with such other payments and benefits as may be
permitted under the Company's short- or long-term disability plans, to the
extent applicable, and subject to the terms and conditions of such plans,
including without limitation any eligibility requirements; and (d) Company shall
permit Executive to receive continuation of the benefits as set forth in Section
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5.5, below, to the extent applicable. The term "Nonperformance Due to
Disability" shall have the meaning set forth in Section 6, below.
5.3 By Company Other Than for Cause or by Executive for Good Reason.
If Executive's employment is terminated as a result of Executive's death, by
Company other than for Cause or by Executive for Good Reason (as defined in
Section 6.3, below), then Company's obligation to pay compensation and benefits
under this Agreement shall immediately terminate, except that: (a) Company shall
pay to Executive and, if applicable, Executive's heirs, any earned but unpaid
Base Salary through such termination date; (b) Company shall permit Executive
and, if applicable, Executive's heirs, to receive continuation of the benefits
as set forth in Section 5.5, below, to the extent applicable; and (c) Company
shall pay to Executive, and, if applicable, Executive's heirs, as severance
benefits, an amount equal to 12 months of Base Salary plus the Maximum Bonus
(the "SEVERANCE BENEFITS"). The Severance Benefits shall be paid in a lump sum,
as soon as practicable following such termination date, subject to the following
conditions: (x) Executive shall execute a written, complete waiver and release
of all claims relating to Company, or Executive's employment by Companyor any
termination thereof, within any applicable consideration or execution periods
and in a form that is acceptable to Company; and (y) subject to confirmation by
Company that Executive does not later revoke such waiver and release of claims
within any revocation period required by applicable law.
5.4 [Intentionally omitted]
5.5 Benefits Continuation. Upon termination of Executive's employment,
Company shall permit Executive and, if applicable, Executive's family members,
to continue to participate in Company's employee benefits plans, to the extent
required or allowed by law and subject to the terms of such plans and applicable
law.
6. Definitions.
6.1 "CAUSE" shall mean termination of Executive's employment by
Company for one or more of the following reasons: (a) Executive has breached a
fiduciary duty owed to Company; (b) Executive has committed dishonesty, fraud,
gross negligence, or willful malfeasance in the performance of Executive's
duties or during the course of Executive's employment; (c) upon the willful and
continued failure by Executive substantially to perform Executive's duties with
the Company (other than by reason of Nonperformance Due to Disability as defined
below); (d) Executive has willfully violated Company policies, (e) Executive has
violated any material applicable law, rule or regulation or violated any
applicable law, rule or regulation and such violation has a material adverse
effect on the Company; or (f) Executive has violated the terms of Sections 4, 7,
or 8 of this Agreement or the material terms of the Confidentiality and
Non-Competition Agreement. With respect to any determination by the Company that
the Executive is subject to termination for "Cause" under the preceding
subsections (a), (c) or (d), the Company will provide written notice to
Executive of its determination and will afford Executive an opportunity, not to
exceed thirty (30) days, in which to cure such Cause if, and only if, such Cause
is capable of being so cured.
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6.2 "DISABILITY" shall have the meaning ascribed to such term or its
variations, such as "Disabled," in Company's long-term disability plan, or in
the absence of such plan, a meaning consistent with the definition of permanent
and total disability under Section 22(e)(3) of the Internal Revenue Code of
1986, as amended.
6.3 "GOOD REASON" shall mean that one or more of the following events
has occurred and, after giving Company written notice of the occurrence and of
Executive's intention to resign from employment and Company not curing the event
within 30 days of receipt of such written notice: (a) a substantial adverse
change in Executive's duties or responsibilities, without Executive's consent;
(b) a reduction in Executive's Base Salary (at the annualized rate) or Bonus
without Executive's consent (c) a relocation of Executive's principal place of
employment by more than a 35 mile radius surrounding Atlanta, Georgia, without
Executive's consent; or (iv) any material breach by the Company of any of its
obligations under this Agreement.
6.4 "NONPERFORMANCE DUE TO DISABILITY" shall mean that, if because of
Disability, Executive is unable to perform the essential functions of
Executive's job, with or without reasonable accommodation, for a period of 90
consecutive days, or for an aggregate of 180 days, in any calendar year.
6.5 "WITHOUT GOOD REASON" shall mean termination or resignation of
Executive's employment by Executive other than for Good Reason.
7. Non-Disparagement. Executive shall not at anytime make false, misleading
or disparaging statements about the Company, its parent, subsidiaries or
affiliates, including any of their products, services, management, directors,
officers, employees, and customers.
8. Confidential Information and Covenants Not to Compete. The parties agree
that Executive's services to Company are of a unique value and that confidential
and proprietary information about Company has been or will be obtained by,
disclosed or otherwise made available to Executive as a result of Executive's
employment with Company. Accordingly, as a condition to Executive's employment,
Executive and Company also are entering into the Confidentiality, Invention
Assignment, and Non-Competition Agreement attached hereto as EXHIBIT 2 (the
"CONFIDENTIALITY AND NON-COMPETITION AGREEMENT").
9. Dispute Resolution Process. All disputes between Executive and Company
that otherwise could be resolved in court shall be resolved instead by the
following alternative dispute resolution process (the "PROCESS").
9.1 Disputes Covered. This Process applies to all disputes between
Executive and Company, including those arising out of or related to this
Agreement or Executive's employment by Company. Disputes subject to this Process
include but are not limited to pay disputes, contract disputes, legal disputes,
wrongful termination disputes, and discrimination, harassment or civil rights
disputes. This Process applies to disputes Executive may have with Company and
also applies to disputes Executive may have with any of Company's employees or
agents so long as the person with whom Executive has the dispute is also bound
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by or consents to this Process. This Process applies regardless of when the
dispute arises and will remain in effect after Executive's employment with
Company ends, regardless of the reason it ends. This Process does not apply,
however, to any workers' compensation or unemployment compensation claims, to
the extent applicable under the circumstances.
9.2 Negotiation and Mediation. Executive and Company agree to attempt
to resolve all disputes first by direct negotiations. If direct negotiations are
not successful, the parties shall then use mediation. They shall first attempt
to agree upon a mediator. If unable to agree upon a mediator, the parties shall
request and conduct mediation under the American Arbitration Association's
National Rules for the Resolution of Employment Disputes. Unless otherwise
agreed by the parties, any mediation sessions shall be held in Atlanta, Georgia.
Temporary or interim injunctive 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.
9.3 Arbitration. If the dispute is not resolved through negotiation
and mediation, the parties shall request, and either party may demand,
arbitration pursuant to the American Arbitration Association's National Rules
for the Resolution of Employment Disputes. Unless otherwise agreed by the
parties, any arbitration hearing shall be held in Atlanta, Georgia. The decision
of the arbitrator shall be final and binding on the parties and on all persons
and entities claiming through the parties. Submission of their dispute to
arbitration shall be the exclusive means for resolving the dispute, to the
exclusion of any trial by a court or jury. All disputes that are not resolved by
agreement (in mediation or otherwise) shall be determined by binding
arbitration.
9.4 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.
9.5 Employment Status. This Process does not affect the status of the
employment relationship between the parties, which as stated above in Section
2.2 shall be "at will;" nor does this Process guarantee continued employment by
the Company, require discharge only for cause, or require any particular
corrective action or discharge procedures.
10. [Intentionally omitted].
11. Severability; Survival of Provisions. If any part of this Agreement or
any part of the Confidentiality and Non-Competition Agreement is held by any
legal authority to be unenforceable or is severed by any legal authority, the
remainder of such agreement shall be enforced to the maximum extent allowed by
applicable law. Certain provisions of this Agreement, including confidential
information and covenants not to compete (Section 8), dispute resolution process
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(Section 9), notification (Sections 10 and 21), and governing law (Section 18)
of this Agreement, and all of the provisions of the Confidentiality and
Non-Competition Agreement, shall survive after any such legal determination,
after Executive's employment by Company ends regardless of the reason it ends,
and shall be enforceable regardless of any such determination or any claim
Executive may have against Company.
12. Relief for Breach. Because any breach or threatened breach by Executive
of Sections 4, 7, and 8 of this Agreement or of the Confidentiality and
Non-Competition Agreement would result in continuing material and irreparable
harm to Company, and because it would be difficult or impossible to establish
the full monetary value of such damage, Company shall be entitled to injunctive
relief in the event of any such breach or threatened breach by Executive.
Injunctive relief is in addition to any other available remedy, including
termination of this Agreement and damages. In the event of any threatened breach
of this Agreement by Executive, Company may suspend any payment of Base Salary,
incentives, bonuses, Severance Benefits and other compensation due to Executive
under this Agreement and, if Executive has breached this Agreement, any
remaining amounts to be paid under this Agreement shall be forfeited. In the
event of any breach or threatened breach by either party which results in
court-ordered relief, the breaching party shall reimburse the non-breaching
party for its reasonable attorneys' fees and other expenses incurred to obtain
such relief.
13. 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.
14. Binding Effect. This Agreement is binding upon the parties and their
personal representatives, heirs, successors and permitted assigns.
15. 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.
16. Complete Agreement. This Agreement, together with the attached
Confidentiality and Non-Competition Agreement, the Restricted Stock Agreement
and the other Exhibits and Schedules hereto, is the final and complete
expression of the parties' agreement relating to Executive's employment by the
Company. Without limiting the foregoing, this Agreement replaces and supersedes
any prior employment agreements between Executive and Company, or its parent,
subsidiaries, predecessors or affiliates, and each party to this Agreement
hereby releases and holds harmless the other party from any obligations or
liability with respect thereto. The parties acknowledge and agree that they are
not entering into this Agreement in reliance on anything not set out in this
Agreement. This Agreement shall control over any inconsistent policies or
procedures of Company affecting Executive's employment, 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
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Executive's employment according to the terms thereof.
17. Payroll Withholding. All payments of Base Salary, incentives, bonuses,
Severance Benefits and other compensation payable to Executive pursuant to this
Agreement or otherwise shall be subject to the customary withholding for income
taxes as determined appropriate by the Company, and shall be subject to other
withholdings or deductions as required with respect to such compensation paid by
a corporation to any employee.
18. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia, without giving effect to the
provisions thereof relating to choice of laws. Each party hereby irrevocably (a)
consents to the jurisdiction and venue for any legal action with the state
courts in Xxxxxx County, Georgia and federal courts in the Northern District of
Georgia, Atlanta Division, unless injunctive relief is sought by Company and, in
Company's judgment, that relief might not be effective unless obtained in some
other venue; and (b) waives any jurisdictional defenses (including personal
jurisdiction and venue) to any such action. These provisions do not give any
party a right to proceed in court in violation of the Dispute Resolution Process
under Section 9, above.
19. Successors And Assigns. All rights and duties of Company under this
Agreement shall be binding on and inure to the benefit of its successors,
assigns or any company which purchases or otherwise acquires it or all or
substantially all of its operating assets by any method. This Agreement shall
not be assignable by Executive other than the right to receive benefits being
passed by will or by the laws of descent and distribution.
20. Amendment. This Agreement contains the entire agreement of the parties
relating to the subject matter and may not be amended except by an instrument in
writing signed by both parties; it shall not be amended orally or by course of
dealing.
21. Notices. All notices required or permitted under this Agreement shall
be in writing and may be personally served or mailed by registered or certified
U.S. mail, postage prepaid and addressed as follows:
If to Company: Interland, Inc.
000 Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
If to Executive: Address specified in EXHIBIT 1
Any of the above addresses may be changed at any time by notice given as
provided above; provided, however, that any such notice of change of address
shall be effective only upon receipt. All notices, requests or instructions
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given in accordance herewith shall be deemed received on the date of delivery,
if hand delivered or telecopied, and 3 business days after the date of mailing,
if mailed by registered or certified mail, return receipt requested.
[SIGNATURES CONTINUED ON NEXT PAGE]
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INTERLAND, INC. EXECUTIVE
By: /s/ Xxxxxxx X. Xxxxxx /s/ Will Xxxxxx
----------------------------- ---------------------------------
Name: Xxxxxxx X. Xxxxxx Name: Will Xxxxxx
--------------------------- ----------------------------
Title: President and C.E.O. Date: 12/22/05
--------------------------- ---------------------------
Date: 12/22/05
---------------------------
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EXHIBIT 1
Executive: Will Xxxxxx
Title: Executive Vice President, Consumer
Base Salary: $185,000
Address: 00 Xxxxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Relocation: Interland will pay Executive a one-time, lump-sum payment of $50,000
in respect of Executive's relocation to the Atlanta metropolitan area. Executive
will relocate his permanent residence to Atlanta within six months of the
Agreement Date. Executive will not be entitled to any other reimbursement of
expenses or temporary living assistance in connection with such relocation.
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EXHIBIT 2
CONFIDENTIALITY, INVENTION ASSIGNMENT, AND NON-COMPETITION AGREEMENT
INTERLAND, INC. AND ITS SUBSIDIARIES, with a place of business located at 000
Xxxxxxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 ("Interland"), and
the undersigned managerial employee ("Employee"), agree, in connection with
Employee's employment by Interland and in consideration of the rights and
benefits given to Employee in connection with such employment (the receipt and
consideration of which is hereby acknowledged) agree as follows.
1) Confidentiality.
a) During Interland's employment of Employee (whether in Employee's
current capacity or in any other future capacity), Interland may
disclose to Employee, either orally, in writing or by other means,
trade secrets and proprietary information concerning Interland's
business, finances, products, customers, vendors, computer technology
and other technical, commercial or financial affairs of Interland
which are not in the public domain and which have been reasonably
restricted by Interland as confidential, hereinafter referred to as
the "CONFIDENTIAL INFORMATION."
b) Employee shall hold in trust and confidence the CONFIDENTIAL
INFORMATION and shall not disclose such CONFIDENTIAL INFORMATION to
any third party, except as agreed by Interland in writing.
c) Employee agrees not to use the CONFIDENTIAL INFORMATION for any
purpose other than in the performance of Employee's duties as an
employee of Interland.
d) Employee's obligations in this Section 1 will not apply to any
CONFIDENTIAL INFORMATION which was: (i) at the time of disclosure to
Employee, in the public domain; (ii) after disclosure to Employee,
published or otherwise, becomes part of the public domain through no
fault of Employee; (iii) without a breach of duty owed to Interland,
in Employee's possession at the time of disclosure to Employee; (iv)
received after disclosure to Employee of such information from a third
party who had a lawful right to and, without a breach of duty owed to
Interland, did disclose such information to Employee; or (v)
independently developed by Employee without reference to CONFIDENTIAL
INFORMATION.
e) The covenants of confidentiality set forth herein (i) will apply after
the date hereof to any CONFIDENTIAL INFORMATION disclosed to Employee
and (ii) will continue and must be maintained from the date hereof
until termination of Employee's employment, plus (A) with respect to
trade secrets (as defined by applicable law), at any and all times
after termination of Employee's employment during which such trade
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secrets retain their status as such under applicable law; and (B) with
respect to CONFIDENTIAL INFORMATION, for a period equal to the shorter
of two (2) years after termination of Employee's employment, or until
such CONFIDENTIAL INFORMATION no longer qualifies as CONFIDENTIAL
INFORMATION under this Agreement or applicable law.
2) Inventions
a) Employee hereby irrevocably assigns to Interland all of Employee's
rights to all Subject Inventions (as defined below) in the United
States and all other countries and the right to claim priority
therein. "Subject Invention" means any Invention (as defined below)
which is conceived by Employee while employed by Interland or within
one (1) year after termination of employment solely or jointly with
others and (i) relates to the actual or anticipated business, research
or development of Interland, (ii) results from any work performed by
Employee using any equipment, facilities, materials, Confidential
Information or personnel of Interland, or (iii) is suggested by or
results from any task assigned or performed by Employee for or on
behalf of Interland. "Invention" means any idea, invention, discovery,
improvement, innovation, design, process, method, formula, technique,
machine, article of manufacture, composition of matter, algorithm or
computer program, as well as improvements thereto.
b) If Employee has previously conceived of any Invention or acquired any
ownership interest in any Invention, which: (i) is Employee's
property, solely or jointly; (ii) is not described in any issued
patent as of the commencement of Employee's employment with Interland;
and (iii) would be a Subject Invention if such Invention was made
while an Interland employee; then Employee must, at Employee's
election, either: (i) provide Interland with a written description of
the Invention on Exhibit 2.1, in which case the written description
(but no rights to the Invention) shall become the property of
Interland; or (ii) provide Interland with the license described in
Section 2(c) of this Agreement.
c) If Employee has previously conceived or acquired any ownership
interest in an Invention described above in Section 2(b) and Employee
elects not to disclose such Invention to Interland as provided above,
then Employee hereby grants to Interland a nonexclusive, paid up,
royalty-free license to use and practice the Invention, including a
license under all patents to issue in any country which pertain to the
Invention.
d) If Employee owns any issued United States Patent or foreign equivalent
thereof, or Employee is an inventor, either individually or jointly,
of any issued United States Patent or foreign equivalent thereof,
Employee must provide the United States Patent number and/or foreign
number for any such patent or foreign equivalent thereof in Exhibit
2.1. Otherwise, Employee represents that Employee owns no United
States Patent or foreign equivalent thereof, individually or jointly,
except those described on Exhibit 2.1.
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e) Employee agrees that should Interland elect to file an application for
patent, either in the United States or in any foreign country on a
Subject Invention for which Employee is an inventor, Employee will
execute all necessary documentation relating to the patent
application, including formal assignments to Interland, and will
cooperate with attorneys or other persons designated by Company to
provide all information necessary for the prosecution of the patent
application(s) in the United States and any foreign country. Employee
also agrees to assist Interland in every proper way to maintain its
patents during and following the period of employment including, but
not limited to, the performance of all lawful acts, such as the giving
of testimony in any interference proceedings, infringement suits, or
other litigation, as may be deemed necessary or advisable by
Interland.
3) Copyrights.
a) Employee agrees that any Works (as defined below) created by Employee
in the course of Employee's duties as an employee of Interland are
subject to the "Work for Hire" provisions contained in Sections 101
and 201 of the United States Copyright Law, Title 17 of the United
States Code. "Work" means any copyrightable work of authorship,
including without limitation, any technical descriptions for products
and services, user's guides, graphical works, audiovisual works, sound
recordings, advertising materials, computer programs, web sites and
content and any contribution to such materials. All right, title and
interest to copyrights in all Works that have been or will be prepared
by Employee within the scope of Employee's employment with the Company
will be the property of the Company. Employee further agrees that, to
the extent the provisions of Title 17 of the United States Code do not
vest the copyrights to any Works in the Company, Employee hereby
assigns to the Company all right, title and interest to copyrights
that Employee may have in the Works.
b) If Employee owns any ownership interest in any Work, Employee will
list any such Work on Exhibit 2.1. Otherwise, Employee will not claim
any ownership rights in any Works, except those described on Exhibit
2.1.
c) Employee also agrees to assist the Company in every proper way to
maintain its Copyrights during and following the period of employment
including, but not limited to, the performance of all lawful acts,
such as the giving of testimony in any infringement suits or other
litigation as may be deemed necessary or advisable by the Company.
4) Non-Solicitation of Customers. During the term of Employee's employment by
Interland and for a period of six (6) months following the termination of
such employment, Employee shall not, either directly or indirectly, on
Employee's behalf or on behalf of others (a) solicit, divert or appropriate
to any Competing Business (as defined below) or (b) attempt to solicit,
divert or appropriate to any Competing Business, any business from any
customer or actively sought prospective customer of Interland with whom
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Employee had contact on behalf of Interland. "Competing Business" means any
business organization of whatever form engaged, either directly or
indirectly, which is the same as, or substantially the same as, the
Business of Interland. "Business of Interland" means the business of
developing and providing Web hosting and related services and products
including without limitation email services, website development and
hosting and e-commerce services.
5) Non-Solicitation of Employees. During the term of Employee's employment by
Interland and for a period of one (1) year following the termination of
Employee's employment, Employee shall not, either directly or indirectly,
on Employee's own behalf or on behalf of others, solicit, divert or hire
away, or attempt to solicit, divert, or hire away, any person employed by
Interland at any facility where Employee performed services or any person
employed by Interland with whom Employee had regular contact in the course
of Employee's employment by Interland.
6) Contracts With Others
a) Employee agrees to provide to the Company, upon the execution and
delivery of this Agreement, a copy of the pertinent portions of any
applicable employment, consulting or subcontracting agreement and
other similar documents, (described on Exhibit 2.1), executed by
Employee with a former employer or any business or person with which
Employee has been associated, which prohibits Employee during a period
of time from: (i) competing with or participating in a business which
competes with Employee's former employer or business; (ii) soliciting
personnel of the former employer or business to leave the former
employer's employment or to leave the business; or (iii) soliciting
customers of the former employer or business on behalf of another
business.
b) Employee represents to the Company that Employee has not entered into
any agreement with any other party which purports to require Employee
to assign any Work or any Invention created, conceived or first
practiced by Employee during a period of time which includes the date
of Employee's commencement of employment with the Company nor is
Employee subject to any law, court order or regulation which purports
to require such assignment, except as described on Exhibit 2.1.
Employee will obtain and provide to the Company a copy of the above
described agreement(s) and a reference to any such law, court order or
regulation.
7) Non-Competition Employee acknowledges that he or she is being hired by
Interland because of his or her unique skills and abilities and that, by
virtue of being hired by Interland, Employee will learn special, unique and
confidential matters pertaining to Interland and the Business of Interland.
Employee agrees that, during Employee's employment and for six (6) months
after the termination of Employee's employment for any reason (such period
being the "Non-Competition Period"), Employee will not, directly or
indirectly, (i) be employed (whether as an employee or as a consultant) for
the purpose of providing Protected Services to a Competing Business in the
Protected Territory, (ii) purchase or accept a beneficial interest in a
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Competing Business in the Protected Territory (except that Employee may
purchase publicly-traded securities in Competing Businesses so long as
Employee's holdings in such Competing Business do not exceed one percent
(1%) of the aggregate outstanding shares in such Competing Business, or
(iii) serve as on the board of directors or similar governing body of any
Competing Business. For purposes of this Section, "Protected Territory"
means (y) the area within fifty (50) miles of Interland's headquarters
location on the date Employee's employment is terminated and (z) the area
within fifty (50) miles of Employee's primary place of work on behalf of
Interland on the date Employee's employment is terminated. For purposes of
this Section, "Protected Services" means those services and other services
reasonably related thereto that Employee is being hired to provide to
Interland.
8) Miscellaneous. This Agreement may not be amended, nor any obligation
waived, except in a writing signed by Interland and Employee. This
Agreement is not assignable or delegable in whole or in part by Employee
without the written consent of Interland. This Agreement shall be governed
and construed by the laws of the State of Georgia, without reference to
conflict of law principles. An executed original of this Agreement may be
delivered by facsimile, which shall be binding as an original. If any part
of this Agreement is held by any legal authority to be unenforceable or is
severed by any legal authority, the remainder of such agreement shall be
enforced to the maximum extent allowed by applicable law.
INTERLAND, INC. EXECUTIVE
By: /s/ Xxxxxxx X. Xxxxxx /s/ Will Xxxxxx
----------------------------- --------------------------
Name: Xxxxxxx X. Xxxxxx Name: Will Xxxxxx
----------------------------
Title: President & C.E.O. Date: 12/22/05
---------------------------- -------------------
Date: 12/22/05
----------------------------
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Works of Employee
Inventions: (None, unless listed here) _______________________________
___________________________________________________________
___________________________________________________________
Patents: (None, unless listed here) _______________________________
___________________________________________________________
___________________________________________________________
Copyrights: (None, unless listed here) _______________________________
___________________________________________________________
___________________________________________________________
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EXHIBIT 3
RESTRICTED STOCK AGREEMENT
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