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EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 28th day of April, 1998, between XXX XXXXXX, a
Washington resident ("Executive"), and MOSAIX, INC., a Washington corporation
("Company").
IN CONSIDERATION of the mutual covenants and promises contained herein, the
parties agree as follows:
1. EMPLOYMENT.
The Company hereby employs Executive, and Executive hereby accepts employment by
the Company, as Company's Vice President, Corporate Development, responsible for
the management and direction of the business development operations of the
Company, subject to the direction and control of the President and Chief
Executive Officer of the Company. The Executive will perform such additional
duties as may be assigned from time to time by the President & CEO of the
Company which relate to the business of the Company, its subsidiaries or any
business ventures in which the Company or its subsidiaries may participate.
2. ATTENTION AND EFFORT.
Executive will devote her full business time, attention and effort to the
Company's business and will use her skills and render services to the best of
her ability to serve the interests of the Company.
3. TERM.
Unless otherwise terminated as provided in Section 6 of this Agreement,
Executive's term of employment under this Agreement shall expire upon
Executive's resignation or termination.
4. COMPENSATION.
4.1 BASE SALARY
Executive's compensation shall consist, in part, of an annual base
salary of $125,000 before all customary payroll deductions (the "Base
Salary"). The Base Salary shall be paid in substantially equal
installments at the same interval as other officers of the Company are
paid, or otherwise in conformance with the Company's standard payroll
practices. The Board of Directors of the Company shall determine any
increases in the Base Salary in future years.
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4.2 BONUS
Executive may be entitled to receive, in addition to the Base Salary,
an annual bonus (the "Bonus") in an amount to be determined pursuant to
the Company's Management Bonus Plan, at appropriate level, as approved
by the Board of Directors of the Company, in effect for each calendar
year.
4.3 STOCK OPTIONS
Executive has been granted incentive stock options &/or nonqualified
stock options to purchase 45,000 shares of common stock of the Company
pursuant to the terms of the Company's 1996 Stock Incentive
Compensation Plan (the "Option Plan"). For the purposes of such Plan,
Executive shall be considered an "Executive Officer" of the Company.
5. BENEFITS AND EXPENSES.
5.1 EXPENSES
The Company shall promptly reimburse Executive for all reasonable and
necessary business expenses incurred and advanced by him in carrying
out her duties under this Agreement, consistent with Company policies
in connection therewith. Executive shall present to the Company from
time to time an itemized account of such expenses in such form as
Company policies may require.
5.2 BENEFITS
During the term of employment hereunder, Executive shall be entitled to
participate fully in any benefit plans, programs, policies and fringe
benefits which may be made available to the senior executives of the
Company generally, including medical, dental, disability, pension and
retirement benefits, life insurance and other death benefits. Executive
will initially be entitled to 2 weeks vacation per year and any other
vacation or personal time off in accordance with Company policy.
5.3 OTHER
The Company shall provide Executive an office and with secretarial
support suitable to the position of Vice President.
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5.4 MOVING EXPENSES
To the extent required, the Company will reimburse Executive for normal
and reasonable household moving expenses in accordance with standard
Company policy or as otherwise agreed between the parties.
6. TERMINATION.
6.1 BY THE COMPANY
With or without "Cause" (as defined in the Option Plan), the Company
may terminate the employment of Executive at any time during the term
upon giving Notice of Termination (as defined below).
6.2 BY EXECUTIVE
Executive may terminate her employment at any time for Good Reason (as
defined below) or otherwise upon giving Notice of Termination.
6.3 AUTOMATIC TERMINATION
Employment shall terminate automatically upon death or total disability
of Executive. The term "total disability" as used herein means an
inability to perform the duties set forth in paragraph 1 of this
Agreement because of illness or physical or mental disability for a
period or periods aggregating 180 calendar days in any 12-month period,
unless Executive is granted a leave of absence by the President or the
Board of Directors of the Company. Executive and Company hereby
acknowledge that Executive's ability to perform the duties specified in
paragraph 1 hereof is of the essence of this Agreement. Termination
hereunder shall be deemed to be effective immediately upon Executive's
death or 30 days following a Notice of Termination based upon a
determination by the Board of Directors of the Company of Executive's
total disability as defined herein.
6.4 NOTICE
The term "Notice of Termination" means written notice of termination of
Executive's employment. At the election of the Company, as set forth in
its Notice of Termination or in a written response to Executive's
Notice of Termination, Executive's employment and performance of
services shall continue for a period of 30 days following the Notice of
Termination. Otherwise Executive's employment shall terminate effective
upon receipt of the Notice of Termination, unless otherwise agreed
between the parties.
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6.5 GOOD REASON
For the purposes of this Agreement, "Good Reason" means, as a result of
or following a "Corporate Transaction" (as defined in the Option Plan),
a material alteration of Executive's position or duties, a reduction of
Executive's Base Salary, or a requirement that Executive move more than
100 miles, provided that Executive gives Notice of Termination within
30 days of such change.
7. SEVERANCE PAYMENTS.
In the event of termination of the employment of Executive, all compensation and
benefits set forth in this Agreement shall terminate as of the effective date of
termination, provided, however, that if the Company terminates Executive's
employment without Cause, or if Executive terminates her employment for Good
Reason, the Company shall be obligated to pay to Executive her then regular Base
Salary for a period of 6 months after the effective date of termination of
employment.
8. AGREEMENT NOT TO COMPETE OR SOLICIT EMPLOYEES.
As a condition of her employment hereunder, Executive has executed and delivered
to the Company an agreement addressing her obligation not to compete with the
business of the Company (the "Non-Compete Agreement") in accordance with
standard Company policy, which Non-Compete Agreement shall survive termination
of Executive's employment. During the term of this Agreement, and for 12 months
following termination of employment hereunder, Executive will not solicit or
otherwise recruit, directly or indirectly, any employees of the Company for
employment elsewhere.
9. AGREEMENT NOT TO DISCLOSE CONFIDENTIAL INFORMATION.
As a condition of her employment hereunder, Executive has executed and delivered
to the Company an agreement addressing the nondisclosure of confidential
information and ownership of inventions (the "Non-Disclosure Agreement") in
accordance with standard Company policy, which Non-Disclosure Agreement shall
survive termination of Executive's employment.
10. FORM OF NOTICE.
Every notice required by the terms of this Agreement shall be given in writing
by serving the same upon the party to whom it was addressed personally, by
courier, by facsimile transmission (with hard copy delivered by overnight
courier) or by registered or certified mail, return receipt requested, at the
address set forth below or
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at such other address as may hereafter be designated by notice given in
compliance with the terms hereof:
If to Executive: 00000 XX 00xx Xxxxx, #000
Xxxxxxx, XX 00000
If to Company: Mosaix, Inc.
0000 000xx Xxxxxx XX
Xxxxxxx, XX 00000
Attn.: Wm. Xxxxxxxx Xxxxxx,
General Counsel
Notice shall be effective upon personal delivery, delivery by courier, receipt
of facsimile transmission or three days after mailing.
11. ASSIGNMENT.
Executive agrees that this Agreement may be transferred or assigned by the
Company to (a) any corporation resulting from any merger, consolidation or other
reorganization to which the Company is a party or (b) any corporation,
partnership, association or other person to which the Company may transfer all
or substantially all of the assets and business, and such assignee or transferee
shall succeed to the rights and obligations of the Company hereunder. This
Agreement may not be assigned by Executive.
12. WAIVER.
No waiver of any of the provisions of this Agreement shall be valid unless in
writing, signed by the party against whom such claim or waiver is sought to be
enforced, nor shall failure to enforce any right hereunder constitute a
continuing waiver of the same of a waiver of any other right hereunder.
13. AMENDMENTS IN WRITING.
No amendment, modification, waiver, termination or discharge of any provision of
this Agreement, nor consent to any departure therefrom by either party hereto,
shall in any event be effective unless the same shall be in writing,
specifically identifying this Agreement and the provision intended to be
amended, modified, waived, terminated or discharged, and signed by the Company
and Executive. No provision of this Agreement shall be varied, contradicted or
explained by any oral agreement, course of dealing or performance or any other
matter not set forth in an agreement in writing and signed by the Company and
Executive.
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14. APPLICABLE LAW -- VENUE.
This Agreement shall be governed by the laws of the state of Washington, without
regard to its conflicts of laws provisions. Venue of any action brought to
enforce or interpret this Agreement shall be in Seattle, Washington, and the
parties consent to jurisdiction in the federal and state courts in such venue.
15. SEVERABILITY.
In the event that any provision of this Agreement shall be determined by any
court or arbitrator of competent jurisdiction to be unenforceable or otherwise
invalid for any reason, such provision shall be enforced and validated to the
extent permitted by law, and the court or arbitrator shall have the power to
reform such provision to the extent necessary for such provision to be
enforceable under applicable law. All provisions of this Agreement are
severable, and the unenforceability of any single provision hereof shall not
affect the remaining provisions.
16. HEADINGS.
All headings or titles in this Agreement are for the purpose of reference only
and shall not in any way affect the interpretation or construction of this
Agreement.
17. ATTORNEYS FEES & COSTS.
In any action or proceeding brought by either party against the other arising
out of or in any way relating to this Agreement, the prevailing party shall, in
addition to other allowable costs and remedies, be entitled to an award of
reasonable attorneys' fees and costs incurred in connection with such action or
proceeding.
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as
of the date above first written.
EXECUTIVE: COMPANY:
MOSAIX, INC.,
a Washington Corporation
/s/ Xxx Xxxxxx By: /s/ Wm. Xxxxxxxx Xxxxxx
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XXX XXXXXX Xx. Xxxxxxxx Xxxxxx
Its General Counsel & Assistant Secretary
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