EXHIBIT 10.16
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of September 30,
1997 (the "Effective Date") between ASYMETRIX CORPORATION, a Washington
corporation with its principal offices located at 000-000xx Xxxxxx X.X.,
Xxxxxxxx, Xxxxxxxxxx 00000-0000, and/or one or more subsidiaries of Asymetrix
Corporation (collectively the "Company"), and XXXXX XXXXX ("Employee").
In consideration of the promises and the terms and conditions set forth in this
Agreement, the parties agree as follows:
1. POSITION.
During the term of this Agreement, Company will employ Employee and Employee
will serve as President of the Company, and General Manager of the Company's
Professional Services business unit. Employee will report directly to the Chief
Executive Officer of the Company.
2. DUTIES.
Employee will be responsible for all aspects of the business of the Professional
Services business unit, and will have such other duties as are reasonably
determined by the Chief Executrive Officer and/or the Board of Directors.
Employee will comply with and be bound by Company's operating policies,
procedures, and practices from time to time in effect during Employee's
employment. Employee will perform his duties under this Agreement at the
offices of Company in Needham, Massachusetts. Employee hereby represents and
warrants that he is free to enter into and fully perform this Agreement and the
agreements referred to herein without breach of any agreement or contract to
which he is a party or by which he is bound.
3. EXCLUSIVE SERVICE.
Employee will devote his full professional time and efforts exclusively to this
employment and apply all his skill and experience to the performance of his
duties and advancing the Company's interests in accordance with Employee's
experience and skills. In addition, Employee will not engage in any consulting
activity except with the prior written approval of Company, or at the direction
of Company, and Employee will otherwise do nothing incompatible with the
performance of his duties hereunder.
4. TERM OF AGREEMENT.
This Agreement will commence on the Effective Date, and will continue until the
earlier of one year after the Effective Date or when terminated pursuant to
Section 7 hereof. The expiration or termination of this Agreement will not
result in the termination of Employee's employment, but Employee will become an
"at will" employee upon such termination or expiration.
5. COMPENSATION AND BENEFITS.
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(a) Base Salary. The Company agrees to pay Employee an initial base salary
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of $150,000 per year, Employee's salary will be payable as earned in accordance
with Company's customary payroll practice, which currently is to pay salary on a
bi-weekly basis.
(b) Additional Benefits. Employee will be eligible to participate in
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Company's employee benefit plans of general application, including without
limitation the Company's 401(k) Plan and those plans covering life, health,
disability, and dental insurance in accordance with the rules established for
individual participation in any such plan and applicable law. Employee will
receive such other benefits, including health club membership, vacation,
holidays and sick leave, as the Company generally provides to its employees
holding similar positions as that of Employee.
(c) Bonus Plan. Employee shall be eligible to participate in the Asymetrix
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1997 Bonus Plan and any future bonus plans adopted by the Board of Directors.
Bonuses are determined based on several factors including corporate revenue and
operating income, business unit revenue and operating income, and individual
performance. Individual performance goals will be established shortly after
beginning employment. As President, Employee's target bonus is 35% of annual
base salary, with a maximum bonus of 100% of base salary. The terms of future
bonus plans will be as determined by the Board of Directors.
(d) Business Expenses. The Company will reimburse Employee for all
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reasonable and necessary expenses incurred by Employee in connection with the
Company's business, provided that such expenses are deductible to the Company,
are in accordance with the Company's applicable policy and are properly
documented and accounted for in accordance with the requirements of the Internal
Revenue Service.
(e) Stock Options. Effective as of the date of employment, Employee shall
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be granted under the Company's Stock Option Plan an incentive stock option to
purchase 23,000 shares of Common Stock at the fair market value as determined by
the Company's Board on the date of grant, which is subject to ratification by
the Board of Directors. Such options shall become exercisable ("vest") one-
fourth (1/4) on the first anniversary of Employee's employment and one-thirty-
sixth (1/36) of the remainder on the same day of the month for the next 36
months.
6. PROPRIETARY RIGHTS.
Employee hereby agrees to execute an Employee Invention, Confidentiality, Non-
raiding and Noncompetition Agreement (the "Invention Agreement") with the
Company in substantially the form attached hereto as Exhibit A.
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7. TERMINATION.
(a) Events of Termination. Employee's employment with the Company shall
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terminate upon any one of the following:
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(i) the Company's determination made in good faith that it is
terminating the Employee for "cause" as defined under Section 7(b) below
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("Termination for Cause"); or
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(ii) the effective date of a written notice sent to Employee stating
that the Company is terminating his employment, without cause, which notice can
be given by the Company at any time after the Effective Date at the Company's
sole discretion, for any reason or for no reason ("Termination Without Cause");
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or
(iii) the effective date of a written notice sent to the Company from
Employee stating that Employee is electing to terminate his employment with the
Company ("Voluntary Termination").
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(b) "Cause" Defined. For purposes of this Agreement, "cause" for
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Employee's termination will exist at any time after the happening of one or more
of the following events:
(i) a failure or refusal to comply in any material respect with the
reasonable policies, standards or regulations of the Company;
(ii) a good faith determination by the Company's Chief Executive
Officer and/or Board of Directors that Employee's performance is unsatisfactory
after reasonable notice of the ways in which performance is unsatisfactory and
an opportunity to correct any such deficiencies;
(iii) a failure or refusal in any material respect to perform his
duties determined by the Company in accordance with this Agreement or the
customary duties of Employee's employment (except for any failure due to ill
health or disability);
(iv) unprofessional, unethical or fraudulent conduct or conduct that
materially discredits the Company or is materially detrimental to the
reputation, character or standing of the Company;
(v) dishonest conduct or a deliberate attempt to do an injury to
the Company;
(vi) Employee's material breach of a term of this Agreement or the
Invention Agreement, including, without limitation, Employee's unauthorized
disclosure or theft of the Company's proprietary information;
(vii) an unlawful or criminal act which would reflect badly on the
Company in the Company's reasonable judgment; or
(viii) Employee's death.
8. EFFECT OF TERMINATION.
(a) Termination for Cause or Voluntary Termination. In the event of any
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termination of this Agreement pursuant to Sections 7(a)(i) or 7(a)(iii), the
Company shall pay Employee the
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compensation and benefits otherwise payable to Employee under Section 5 through
the date of termination. Employee's rights under the Company's benefit plans of
general application shall be determined under the provisions of those plans.
(b) Termination Without Cause. In the event of any termination of this
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Agreement pursuant to Section 7(a)(ii) during the period ending one year after
the Effective Date:
(i) The Company shall pay Employee the compensation and benefits
otherwise payable to Employee under Section 5 through the date of termination
(including a pro rata portion of any bonus compensation that may become payable
for the calendar quarter that includes the date of termination, which bonus
compensation shall be paid following the end of such calendar quarter);
(ii) for a period ending on the later of one year after the Effective
Date or six months following the date of termination, the Company shall continue
to pay Employee his base salary under Section 5(a) above at Employee's then-
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current salary, less applicable withholding taxes, payable on the Company's
normal payroll dates during that period;
(iii) Employee's rights under the Company's benefit plans of general
application shall be determined under the provisions of those plans.
9. MISCELLANEOUS.
(a) Arbitration. Employee and the Company shall submit to mandatory
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binding arbitration in Boston, Massachusetts any controversy or claim arising
out of, or relating to, this Agreement or any breach hereof, provided, however,
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that the Company retains its right to, and shall not be prohibited, limited or
in any other way restricted from, seeking or obtaining equitable relief from a
court having jurisdiction over the parties. Such arbitration shall be conducted
in accordance with the commercial arbitration rules of the American Arbitration
Association in effect at that time, and judgment upon the determination or award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof.
(b) Severability. If any provision of this Agreement shall be found by any
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arbitrator or court of competent jurisdiction to be invalid or unenforceable,
then the parties hereby waive such provision to the extent that it is found to
be invalid or unenforceable and to the extent that to do so would not deprive
one of the parties of the substantial benefit of its bargain. Such provision
shall, to the extent allowable by law and the preceding sentence, be modified by
such arbitrator or court so that it becomes enforceable and, as modified, shall
be enforced as any other provision hereof, all the other provisions continuing
in full force and effect.
(c) Remedies. The Company and Employee acknowledge that the service to be
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provided by Employee is of special, unique, unusual, extraordinary and
intellectual character, which gives it peculiar value the loss of which cannot
be reasonably or adequately compensated in damages in an action at law.
Accordingly, Employee hereby consents and agrees that for any breach or
violation by Employee of any of the provisions of this Agreement including,
without limitation, Section 3, a restraining order and/or injunction may be
issued against Employee, in
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addition to any other rights and remedies the Company may have, at law or
equity, including without limitation the recovery of money damages.
(d) No Waiver. The failure by either party at any time to require
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performance or compliance by the other of any of its obligations or agreements
shall in no way affect the right to require such performance or compliance at
any time thereafter. The waiver by either party of a breach of any provision
hereof shall not be taken or held to be a waiver of any preceding or succeeding
breach of such provision or as a waiver of the provision itself. No waiver of
any kind shall be effective or binding, unless it is in writing and is signed by
the party against whom such waiver is sought to be enforced.
(e) Assignment. This Agreement and all rights hereunder are personal to
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Employee and may not be transferred or assigned by Employee at any time. The
Company may assign its rights, together with its obligations hereunder, to any
parent, subsidiary, affiliate or successor, or in connection with the sale,
transfer or other disposition of all or substantially all of its business and
assets, provided, however, that any such assignee assumes the Company's
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obligations hereunder.
(f) Withholding. All sums payable to Employee hereunder shall be reduced
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by all federal, state, local and other withholding and similar taxes and
payments required by applicable law.
(g) Entire Agreement. This Agreement and the Invention Agreement
----------------
constitute the entire and only agreement between the parties relating to
employment of Employee with the Company, and this Agreement and the Invention
Agreement supersede and cancel any and all previous contracts, arrangements or
understandings with respect thereto.
(h) Amendment. This Agreement may be amended, modified, superseded,
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canceled, renewed or extended only by an agreement in writing executed by both
parties hereto.
(i) Notices. All notices and other communications required or permitted
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under this Agreement shall be in writing and hand delivered, sent by telecopier,
sent by certified first class mail, postage prepaid, or sent by nationally
recognized express courier service. Such notices and other communications shall
be effective upon receipt if hand delivered or sent by telecopier, five days
after mailing if sent by U.S. mail, and one day after dispatch if sent by
express courier, to the following addresses, or such other addresses as any
party shall notify the other parties:
If to the Company: Asymetrix Corporation
000-000xx Xxxxxx X.X., Xxxxx 000
Xxxxxxxx, XX 00000-0000
Telecopier: 000-000-0000
Attention: Chief Executive Officer
If to Employee: ____________________________
____________________________
____________________________
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Telecopier: _____________________________
Attention: _____________________________
(j) Binding Nature. This Agreement shall be binding upon, and inure to the
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benefit of, the successors and personal representatives of the respective
parties hereto.
(k) Governing Law. This Agreement and the rights and obligations of the
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parties hereto shall be construed in accordance with the laws of the State of
Massachusetts, without giving effect to the principles of conflict of laws;
provided, however, that if Employee is relocated to another jurisdiction then
the laws of such jurisdiction shall apply, and in the event of any claim made
following termination the laws of the jurisdiction where Employee was located on
the date of termination shall apply.
IN WITNESS WHEREOF, the Company and Employee have executed this Agreement
as of the date first above written.
"COMPANY" "EMPLOYEE"
ASYMETRIX CORPORATION
/s/ Xxxxx Xxxxx
-----------------------------
XXXXX XXXXX
By: /s/ X. Xxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxx
----------------------------------
Title: Chief Executive Officer
-----------------------------------
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EXHIBIT A
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EMPLOYEE INVENTION, CONFIDENTIALITY,
NONRAIDING AND NONCOMPETITION AGREEMENT
ASYMETRIX CORPORATION and each of its subsidiary corporations (collectively
"Asymetrix") and I, the undersigned employee, agree as follows.
Asymetrix is in the business of, among other activities, developing and
publishing computer software for creating and managing computer based training
and on-line learning applications as well as providing consulting services and
both customized and standard online learning content.
During the course of my employment and/or engagement as a consultant or
independent contractor by Asymetrix, 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 Closing Date including the salary, fringe benefits and bonus
payments made and to be made to me under that agreement; 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:
(a) "Company" means Asymetrix Corporation, its subsidiary corporations and
its and their 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 Company 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. 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.
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(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, 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.
(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 Confidential
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.
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(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 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. CONFIDENTIALITY.
(a) Except as required in my duties to Company, I shall 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.
(b) 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.
6. NONRAIDING OF EMPLOYEES.
I recognize that Company's workforce is a 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.
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7. NONCOMPETITION.
I recognize and agree that Company has many 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, the
Company's protection of and rights in its Confidential Information. Therefore,
subject to the limitations of applicable state law regarding the enforceability
of covenants not to compete, I agree as follows:
(a) Noncompetition While Related to Company. So long as I am an employee
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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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Voluntary Termination or Temination With Cause (both as defined in my Employment
Agreement) of my employment, independent contractor and/or consulting
relationships with Company, and for the length of time provided in subparagraph
7(f) below, I will not, directly or indirectly, in any geographic area where
Company's software products or services are then marketed, sold or distributed:
(a) publish or propose to publish Competing Software or provide or propose to
provide Competing Services, (b) design or develop Competing Software or
Competing Services, or (c) work for or with, or provide services or information
to, any person or entity that (i) publishes or proposes to publish Competing
Software, or (ii) is designing or developing Competing Software or (iii) is
providing or proposes to provide Competing Services.
(c) Competing Software. For purposes of this Agreement, Competing Software
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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 Asymetrix.
(d) Competing Software. For purposes of this Agreement, Competing Services
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means consulting services that competes or will compete with any of Company's
then existing or reasonably anticipated consulting services.
(e) 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 or (iii) provide or propose to provide Competing
Services 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 or Competing Services, provided that I 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, with the divisions,
business units or product work groups involved with Competing Software or
Competing Services.
(f) Term of Noncompetition. The noncompetition provisions of subparagraph
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7(b) above shall apply for a period of twelve (12) months after my relationships
with Company terminate, regardless of the reasons they terminate.
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(g) 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.
8. DISCLOSURE OF PROPOSED EMPLOYMENT.
Before I undertake or agree to undertake any other employment, consultancy or
independent contractor relationship, for myself or with or for a Competing
Company, I shall give Company reasonable advance notice and fully disclose the
proposed employment, consultancy or independent contractor relationship to
Company. 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.
9. OWNERSHIP OF RECORDS.
Upon termination of my employment, independent 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.
10. SAVING PROVISION.
I agree that the terms of this Agreement, including the duration, scope and
geographic extent 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.
11. INJUNCTIVE RELIEF.
I acknowledge that the breach or threatened breach 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.
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12. NO GUARANTEE OF EMPLOYMENT.
This Agreement may not be construed as an 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, subject to the
terms of the Employment Agreement of even date herewith (the "Employment
Agreement").
13. CONSENT TO NOTIFICATION.
I consent to Company giving notification to third parties of the existence and
terms of this Agreement (but not of my Employment Agreement).
14. LEGAL EXPENSE.
In any dispute between us arising out of or relating 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.
15. WAIVER OF BREACH.
The waiver of any breach of this Agreement or failure to enforce any provision
of this Agreement shall not waive any later breach.
16. MISCELLANEOUS.
(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, together with the Employment Agreement are 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 in which I will be based while providing services
to Company, without regard to the provisions thereof related to choice of laws
or conflict of laws. If I am based in more than one state during the term of
this Agreement then "the state in which I will be based while providing services
to Company" shall mean the state in which I was based at the earlier of (i) the
time the claim in issue hereunder arose or (ii) termination of my employment
with Company.
(d) Venue and jurisdiction of any lawsuit involving this Agreement or my
employment shall exist exclusively in state and federal courts in the county and
state in which I will be based while providing services to Company (as
determined pursuant to paragraph 16(c)), unless
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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 Trade Secrets Acts of any
applicable jurisdiction.
(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.
(h) This Agreement shall survive the termination of my relationship with
Company, however caused.
IN WITNESS WHEREOF, the Company and Employee have executed this Agreement
as of the date first above written.
"COMPANY" "EMPLOYEE"
ASYMETRIX CORPORATION
/s/ XXXXX XXXXX
___________________________________
XXXXX XXXXX
By: /s/ X. Xxxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxxx
__________________________________
Title: Chief Executive Officer
___________________________________
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