Exhibit 10.8(i)
CONSULTING AND EMPLOYMENT AGREEMENT
THIS CONSULTING AND EMPLOYMENT AGREEMENT ("Agreement"), made and
entered into effective as of the 2nd day of January, 1995, by and between Xxxx
X. Xxxxx ("Xxxxx") and Interactive Intelligence, Inc. ("Company"), an Indiana
corporation.
WITNESSETH:
WHEREAS, Xxxxx possesses certain skills which the Company wishes to
utilize in its business, and Xxxxx wishes to provide certain services to the
Company upon the terms and conditions set forth in this Agreement; and
WHEREAS, Xxxxx is a co-founder of the Company with Xx. Xxxxxx X. Xxxxx
and has assisted with the Company since October, 1994.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises and agreements contained herein and other good and valuable
consideration, the receipt, legal adequacy and sufficiency of which are hereby
acknowledged, the parties agree as follows:
SECTION 1. CONSULTING AND EMPLOYMENT. The Company engages Xxxxx to
serve the Company, and Xxxxx agrees to serve the Company, as a consultant to
provide the services described herein and as an employee in such capacities as
the Board of Directors of the Company may, from time to time, determine, upon
the terms and conditions hereinafter set forth.
SECTION 2. TERM; RENEWAL. (a) The term of Xxxxx' service as a
consultant shall commence effective as of January 2, 1995 and end on June 30,
1995.
(b) The term of Xxxxx' employment under this Agreement shall be for an
initial term of one (1) year and six (6) months commencing on July 1, 1995 and
ending on December 31, 1996. This Agreement shall automatically renew for
successive one (1) year terms, on the same terms set forth herein, unless either
the Company or Xxxxx gives written notice to the other, at least thirty (30)
days prior to the expiration of the initial term or any renewal term, that the
term will not renew.
SECTION 3. TITLE, SERVICES AND DUTIES. (a) During his service as a
consultant, Xxxxx shall provide advice and consultation with respect to the
administrative operations and management of the Company for at least twenty (20)
hours per week at such times and locations as may be mutually agreed upon by the
Company and Xxxxx. The Company may, but shall not be obligated to, provide
office facilities and support services to Xxxxx during his service as a
consultant. Xxxxx represents that he has adequate facilities and support
services to fulfill his consulting duties under this Agreement.
(b) During his term of employment hereunder, Xxxxx shall serve as
Executive Vice President of Administration and Corporate Development and shall
perform duties and responsibilities normally associated with such a position in
the Company's industry including the
administrative and corporate affairs management of the Company, and such other
duties that may be delegated to him by the CEO or the Company's Board of
Directors. During such employment Xxxxx shall devote substantially all of his
business time, attention, energy and skill to the business of the Company and
shall perform such services in a faithful and diligent manner at the direction
of the CEO and of the Company's Board of Directors. During Xxxxx' employment,
the Company shall provide Xxxxx with such office facilities and support service
as the Company determines in its business judgment to be appropriate for Xxxxx
to perform his duties and responsibilities hereunder.
SECTION 4. CONSULTING FEE. (a) Commencing on January 2, 1995 and ending
on June 30, 1995, the Company shall pay Xxxxx a monthly consulting fee of Two
Thousand Five Hundred and No/100 Dollars ($2,500.00). Payment of such monthly
consulting fee shall occur on the last day of each applicable month during such
time period. Xxxxx shall be responsible for payment of all applicable local,
state and federal withholding taxes on any consulting fees paid hereunder.
(b) The Company also agrees to reimburse Xxxxx for reasonable and
customary expenses incurred by him in the performance of his consulting services
hereunder, up to a maximum of Five Hundred and No/100 Dollars ($500.00) per
month, subject to submission of such receipts or other verification as the
Company may reasonably require. Any expense amount in excess of Five Hundred and
No/100 Dollars ($5 00.00) per month shall have the prior approval of the CEO.
SECTION 5. COMPENSATION AS EMPLOYEE. Commencing on July 1, 1995, and at
all times thereafter during the initial term or any renewal term of this
Agreement, the Company shall pay Xxxxx an annual salary of Sixty Thousand
Dollars ($60,000.00) payable at the usual payroll payment dates of the Company.
All amounts paid hereunder by Company to Xxxxx shall be subject to all
applicable local, state and federal withholding taxes. The Company may increase
the salary set forth herein from time to time, in its sole discretion, but may
not decrease it below the amount set forth without the consent of Xxxxx. The
Company in its discretion may also pay Xxxxx bonuses from time to time in such
amounts and upon such terms as the Company determines is appropriate.
SECTION 6. STOCK OPTIONS. The Company agrees to grant to Xxxxx
incentive stock options to purchase up to one hundred eleven thousand one
hundred eleven (111,111) shares of its common stock to be exercised upon and
subject to the terms and conditions of an Incentive Stock Option Plan to be
adopted by the Company, and such other terms and conditions as Xxxxx and the
Company may agree. The Company in its discretion may also grant to Xxxxx
additional options from time to time in such amounts and upon such terms as the
Company determines to be appropriate.
SECTION 7. TERMINATION AND SEVERANCE PAYMENTS. (a) In the event the
consulting services of Xxxxx are terminated for any reason, the Company will pay
Xxxxx his consulting fee through the effective date of termination.
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(b) In the event that the employment of Xxxxx is terminated for cause
or in the event that Xxxxx resigns his employment with the Company, Xxxxx shall
be paid any salary and any other benefits which have then accrued and to which
he is entitled to at such time through the effective date of such termination.
However, in such event, Xxxxx shall not be entitled to any severance
compensation.
(c) In the event that the employment of Xxxxx is terminated by the
Company for any reason other than for cause, in addition to receiving all
accrued salary and benefits to which Xxxxx is entitled to at such time, the
Company further agrees to pay Xxxxx as xxxxxxxxx pay three (3) month's salary
(as in effect at such time) for an additional three (3) months from the date of
termination, with payments to be made on the Company's usual payroll payment
dates.
(d) All amounts paid under subsections (b) or (c) shall be subject to
all applicable local, state or federal withholding taxes, if any.
SECTION 8. EMPLOYEE BENEFITS. During the term of Xxxxx' employment
hereunder:
(a) Xxxxx shall be covered by any life, health, hospitalization or any
other insurance program, or any other pension or benefit plan which the Company
may from time to time provide or make available to the Company's employees or
its senior management and for which Xxxxx is eligible and qualified; provided
that if the inclusion of Xxxxx under any such program or plan causes or would
cause either such program or plan to be terminated or the Company to incur a
materially disproportionate additional cost, the Company may elect to provide
benefits of a substantially similar nature which avoids such adverse effects.
The Company acknowledges that it is obligated to provide these benefits in any
event.
(b) Xxxxx shall be entitled to four (4) weeks of vacation each year,
during which time his compensation shall be paid in full. Any unused vacation
shall lapse at the end of each calendar year and Xxxxx shall have no right to
any additional compensation for unused vacation; provided that if because of the
Company's requirements, the Company does not approve Xxxxx' requested vacation
schedule and thus prevents Xxxxx from fully utilizing all of Xxxxx'vacation in
the year earned, the Company and Xxxxx shall in good faith make arrangements for
either the carryover of such unused vacation to, the next calendar year or such
other arrangements as are mutually satisfactory.
(c) Xxxxx shall be entitled to reimbursement for reasonable expenses
incurred on behalf of the Company according to and in compliance with such
reimbursement policies as the Company adopts from time to time.
SECTION 9. COVENANT NOT TO COMPETE. (a) During Xxxxx'service hereunder
as either a consultant or an employee and for a period of twelve (12) months
thereafter, regardless of the reason or method of termination, Xxxxx will not,
directly or indirectly:
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(i) solicit in any manner, seek to obtain, or service the
business of any customer of the Company, other than
for the Company, in connection with any transactions,
business plan, project or endeavor which would have
an adverse affect upon the Company or upon the
Company's relations with such customer;
(ii) become an owner of any business, if such business
competes with the Company;
(iii) become employed by or serve as an agent, independent
contractor or representative of any business which
competes with the Company; or
(iv) solicit the employment of any Employee of the
Company, or encourage any Employee to terminate his
or her employment with the Company.
(b) For purposes of this Agreement, a "customer" shall be deemed to be
any person, business, partnership, proprietorship, firm, organization or
corporation which has done business with the Company or which has been solicited
or serviced in any manner, directly or indirectly, by the Company within
eighteen (18) months prior to the date of the termination of Xxxxx and the
phrase "service the business of any customer" means the development,
modification, enhancement or improvement of any product or service offered by
the Company or which is reasonably related to the products or services offered
by the Company. Xxxxx hereby acknowledges that, by virtue of his position and
access to information whether as a consultant or as an employee, he will have
advantageous familiarity and personal contacts with the Company's customers,
wherever located and that the restrictions contemplated hereby are reasonable
for the protection of the Company's goodwill and customer base, and the
Company's efforts in the development of such customers.
(c) If Xxxxx does not comply with the provisions of this Section 9, the
twelve (12) month period of non-competition provided herein shall be tolled and
deemed not to run during any period(s) of noncompliance, the intention of the
parties being to provide twelve (12) full months of non-competition by Xxxxx
after the termination or expiration of this Agreement.
SECTION 10. COVENANT NOT TO DISCLOSE CONFIDENTIAL INFORMATION. (a) The
term "Confidential Information" as used herein shall mean any and all customer
lists, trade secrets and information, know-how, skills, knowledge, ideas,
knowledge of customer's commercial requirements, pricing methods, sales and
marketing techniques, dealer relationships and agreements, financial
information, intellectual property, codes, research, development, research and
development programs, processes, documentation, or devices used in or pertaining
to the Company's business (i) which relate in any way to the Company's business,
products or processes; or (ii) which are discovered, conceived, developed or
reduced to practice by Xxxxx,
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either alone or with others either (x) during the term of this Agreement; or (y)
at the Company's expense; or (z) on the Company's premises.
(b) During the course of his services hereunder, whether as a
consultant or an employee, Xxxxx may become knowledgeable about, or become in
possession of, Confidential Information. If such Confidential Information were
to be divulged or become known to any competitor of the Company or to any other
person outside the employ of the Company, or if Xxxxx were to consent to be
employed by any competitor of the Company or to engage in competition with the
Company, the Company would be harmed. In addition, Xxxxx has or may develop
relationships with the Company's customers which could be used to solicit the
business of such customers away from the Company. The parties have entered into
this Agreement to guard against such potential harm.
(c) Xxxxx shall not, directly or indirectly, use any Confidential
Information for any purpose other than the benefit of the Company or
communicate, deliver, exhibit or provide any Confidential Information to any
person, firm, partnership, corporation, organization or entity, except other
employees or agents of the Company as required in the normal course of Xxxxx'
service as a consultant or as an employee. The covenant contained in this
Section 10 shall be binding upon Xxxxx during the term of this Agreement and
following the termination hereof, or the shorter of the period until either (i)
until such Confidential Information becomes obsolete; or (ii) until such
Confidential Information becomes generally known in the Company's trade or
industry by means other than a breach of this covenant.
(d) Xxxxx agrees that all Confidential Information and all records,
documents and materials relating to all of such Confidential Information, shall
be and remain the sole and exclusive property of the Company.
SECTION 11. REMEDIES. (a) Xxxxx agrees that the Company will suffer
irreparable damage and injury and will not have an adequate remedy at law in the
event of any breach by Xxxxx of any provision of Sections 9 or 10 hereof.
Accordingly, in the event of a breach or of a threatened or attempted breach by
Xxxxx of Sections 9 or 10 hereof, in addition to all other remedies to which the
Company is entitled under law, in equity, or otherwise, the Company shall be
entitled to a temporary restraining order and permanent injunction (without the
necessity of showing any actual damage) or a decree of specific performance of
the provisions of Sections 9 or 10 hereof and no bond or other security shall be
required in that connection. The Company shall be entitled to recover from
Xxxxx, reasonable attorneys' fees and expenses incurred in any action wherein
the Company successfully enforces the provisions of Sections 9 or 10 hereof
against the breach or threatened breach of those provisions by Xxxxx.
(b) Xxxxx acknowledges and agrees that in the event of termination of
this Agreement for any reason whatsoever, Xxxxx can obtain other engagements or
employment of a kind and nature similar to that contemplated herein and that the
issuance of an in unction to enforce the provisions of Sections 9 or 10 hereof
will not prevent him from earning a livelihood.
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(c) The covenants on the part of Xxxxx contained in Sections 9 or 10
hereof are essential terms and conditions to the Company entering into this
Agreement, and shall be construed as independent of any other provision in this
Agreement. The existence of any claim or cause of action Xxxxx has against the
Company, whether predicated on this Agreement or otherwise, shall not constitute
a defense to the enforcement by the Company of these covenants.
SECTION 12. INVENTIONS. (a) Xxxxx shall disclose fully to the Company
all inventions conceived or discovered by him, whether solely or jointly with
others during the term of this Agreement. Such inventions shall belong solely to
the Company and shall not belong to Xxxxx. During the term of this Agreement,
Xxxxx shall assign to the Company, exclusively and free from any royalty
obligation or any other legal or equitable title or right of Xxxxx, all such
inventions referred to above and all patents, trademarks, copyrights, and
maskworks, and any and all applications and rights pertaining thereto on a
worldwide basis. Xxxxx shall assist the Company, during and subsequent to the
term hereof, employment, in every proper way, as reasonably requested by the
Company to fully vest such inventions in the Company for its benefit and
enjoyment, including, but not in limitation thereof, the execution and delivery
of applications for the registration of one or more intellectual property rights
and assignments of the same as may be deemed necessary or desirable by the
Company. The judgment of the Company with respect to the registrability of any
particular item of intellectual property shall be final and conclusive.
(b) Any improvements made upon such inventions by Xxxxx subsequent to
the term hereof shall be presumed to have been developed during the term hereof
and by and for the benefit of the Company and accordingly shall be the property
of the Company.
(c) Xxxxx agrees to execute such other standard forms relating to the
invention or development of inventions and other intellectual properties as the
Company may require of its consultants and Xxxxx generally.
(d) Prior inventions of Xxxxx, if any, as listed on Exhibit B attached
hereto, are excluded from the scope of this Agreement.
SECTION 13. SURRENDER OF RECORDS. Upon termination of Xxxxx' consulting
services or employment for any reason, Xxxxx shall immediately surrender to the
Company any and all records, notes, documents, forms, manuals, photographs,
instructions, lists, drawings, blueprints, programs, diagrams or other written
or printed material (including any and all copies made at any time whatsoever)
in his possession or control which pertain to the business of the Company;
provided that Xxxxx may retain a copy of personal time-logs, telephone logs, and
address records prepared by him during the term of this Agreement, personal
notes and other tangible materials which are not "Confidential Information"
within the scope of the covenant contained in Section 10 hereof. Xxxxx
acknowledges that the retention of such materials shall not modify or diminish
in any regard any limits on the use thereof imposed by the covenants contained
in Sections 9 and 10 hereof.
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SECTION 14. TERMINATION. (a) The term of Xxxxx' service as a consultant
may be terminated at will by either the Company or Xxxxx with at least ten (10)
days prior written notice by the terminating party delivered to the other.
(b) During the initial term or any such renewal term, the employment of
Xxxxx may be terminated at will for any reason by either the Company or Xxxxx,
with at least thirty (30) days prior written notice by the terminating party
delivered to the other setting forth whether such termination was for cause or
without cause to determine whether Xxxxx is entitled to any severance payment
pursuant to Section 7 above.
(c) Notwithstanding the foregoing, this Agreement shall be terminated
immediately, without any notice or waiting period, upon Xxxxx' death.
(d) This Agreement may be terminated at any time by mutual agreement of
the parties.
SECTION 15. PARTIES BOUND. All provisions of this Agreement shall inure
to the benefit of and be binding upon the parties hereto, their heirs, personal
representatives, successors and assigns.
SECTION 16. EFFECT AND MODIFICATION. This Agreement comprises the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all other earlier agreements relating to the subject matter
hereof. No statement or promise, except as herein set forth, has been made with
respect to the subject matter of this Agreement. No modification or amendment
hereof shall be effective unless in writing and signed by Xxxxx and an officer
of the Company (other than Xxxxx).
SECTION 17. NON-WAIVER. The Company's or Xxxxx' failure or refusal to
enforce all or any part of, or the Company's or Xxxxx' waiver of any breach of
this Agreement, shall not be a waiver of the Company's or Xxxxx' continuing or
subsequent rights under this Agreement, nor shall such failure or refusal or
waiver have any affect on the subsequent enforceability of this Agreement.
SECTION 18. NON-ASSIGN ABILITY. This Agreement contemplates that Xxxxx
will personally provide the services described herein, and accordingly, Xxxxx
may not assign his rights or obligations hereunder, whether by operation of law
or otherwise, in whole or in part, without the prior written consent of the
Company.
SECTION 19. NOTICE. Any notice, request, instruction or other document
to be given hereunder to any party shall be in writing and delivered by hand,
telegram, registered or certified United States mail return receipt requested,
or other form of receipted delivery, with all expenses of delivery prepaid, as
follows:
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If to Xxxxx: Xxxx X. Xxxxx
0000 Xxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
If to the Employer: Interactive Intelligence, Inc.
0000 XxXxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, M.D., CEO
SECTION 20. GOVERNING LAW. This Agreement is being delivered in and
shall be governed by the laws of the State of Indiana. All actions or
proceedings shall be tried in the state or federal courts whose venue includes
Xxxxxx County or Xxxxxxxx County, Indiana.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
/s/ Xxxx X. Xxxxx
-------------------------------
Xxxx X. Xxxxx
INTERACTIVE INTELLIGENCE, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx, M.D., CEO
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