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Exhibit 10.33
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AND NONCOMPETITION AGREEMENT (this "Agreement"), dated
as of December 11, 2000 is entered into by and between N(2)H(2), INC., a
Washington corporation (the "Company"), and XXXXX X. XXXX, a resident of the
State of Washington (the "Executive").
WHEREAS, the Company wishes to assure itself of the services of
Executive for the period provided in this Agreement; and
WHEREAS, Executive is willing to serve in the employ of the Company as
Vice President - Chief Technology Officer of the Company for said period; and
WHEREAS, Executive and the Company desire to mutually rescind any and
all employment agreements previously entered between Executive and the Company,
and to replace any such employment agreements with this Agreement in exchange
for valuable consideration; and
WHEREAS, the parties desire by this writing to set forth the terms and
conditions of the continuing employment relationship, the Company and Executive.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Employment. The Company hereby employs Executive, and Executive
agrees to accept such employment, upon the terms and conditions herein set
forth.
2. Term. The term of employment hereunder shall commence on the date
hereof and continue for a period of twelve (12) months ending on December 11,
2001 (the "Term"), subject to earlier termination as provided herein.
3. Position and Duties. Executive hereby agrees to serve as an employee
of the Company as Vice President - Chief Technology Officer. Executive shall
report to the President or such other officer(s) as designated by the Board of
Directors of the Company (the "Board"). Executive shall devote his best efforts
and his full business time and attention to the performance of services to the
Company in accordance with the terms hereof and as may reasonably be requested
by the Board, the President or other Board-designated officer of the Company.
4. Compensation and Other Terms of Employment.
(a) Compensation. In consideration of the performance of his
duties hereunder, during the Term, the Company agrees to pay Executive during
the term of his employment at a rate of a base annual salary of One Hundred
Seventy-Five Thousand and No/100 Dollars ($175,000.00)
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(the "Base Compensation"). All amounts payable to Executive under this Section
4(a) shall be paid in accordance with the Company's regular payroll practices
(e.g., timing of payments and standard employee deductions, such as income tax,
Social Security and Medicare withholdings).
(b) Bonus. In addition to the Base Compensation described in
Section 4(a) above and any additional bonuses approved by the Board, Executive
shall receive a quarterly bonus in the amount equal to 1.5% of the increase, if
any, of the Company's gross revenues during such quarter over the gross revenues
for the same quarter during the immediately preceding year. For purposes of this
Section 4(b), gross revenues shall be computed in accordance with generally
accepted accounting principles consistently applied. Notwithstanding the
foregoing, the amount of bonus compensation pursuant to this Section 4(b) during
any Company fiscal year shall not exceed seventy percent (70%) of Executive's
Base Compensation during such fiscal year. Bonus compensation for any quarter
shall be payable on the 15th day of the month following the end of the quarter
and shall be subject to standard employee deductions.
(c) Business Expenses. During the Term, upon presentation of
vouchers and similar receipts, Executive shall be entitled to receive
reimbursement in accordance with the policies and procedures of the Company
maintained from time to time for all reasonable business expenses actually
incurred in the performance of his duties hereunder.
(d) Vacation. During the Term, Executive shall be entitled to
four (4) weeks paid annual vacation. Executive's vacation will be scheduled at
those times most convenient to the Company's business.
(e) Benefits. During the Term, the Company shall provide to
Executive such other employment benefits as may from time to time, be made
generally available to executives of the Company, including, without limitation,
the opportunity to participate in a group health insurance plan and other
benefit plans, if any are in existence, in accordance with the terms of such
plans, which benefits are intended to be substantially similar to those provided
by the Company as of the date hereof (assuming availability at costs consistent
with and comparable to those currently paid by the Company); provided, however,
that the Company shall not be required to establish, continue or maintain any
benefit plans.
(f) Additional Benefits. The Company shall reimburse Executive on
a monthly basis for reasonable commuting costs, health club dues and high speed
Internet access at home.
(g) Stock Option. The Company will grant Executive an option to
acquire 100,000 shares of the Company's common stock, subject to the terms and
conditions of the Company's stock option plan (except as specifically set forth
in this Section 4(g)). Such option shall vest and be exercisable on the last day
of the Term if Executive's employment hereunder has not been terminated prior to
such date; however, if the Company terminates Executive's employment hereunder
without Cause (as defined in Section 6(a), such option shall automatically
become vested on the date of such termination.
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5. Termination of Employment.
(a) Executive's Permanent Disability. In the event, if the
Company's judgment, that Executive is unable to perform the essential functions
of his position with a reasonable accommodation, which accommodation does not
cause an undue hardship on the Company, for a period of ninety (90) consecutive
days because of an illness, injury, or other physical or mental condition, the
Executive shall be deemed to have a "Permanent Disability." The parties
acknowledge Executive occupies an important position within the Company that
cannot be reasonably accommodate through the use of temporary employees. If
Executive's employment is terminated because of Executive's Permanent
Disability, the Company shall continue to pay all Base Compensation and pro rata
bonus amounts accrued pursuant to the Sections 4(a) and 4(b) above through the
date of termination, and shall continue to pay all Base Compensation and pro
rata bonus amounts, if any, accrued pursuant to Sections 4(a) and (b) for the
number of months remaining in the Term.
(b) Executive's Death. If Executive's employment is terminated
because of Executive's death, the Company shall pay to Executive's personal
representative (on behalf of Executive's estate), within 60 days after the
Company receives written notice of such representative's appointment, all Base
Compensation and pro rata bonus amounts, if any, accrued pursuant to Sections
4(a) and 4(b) above through the date of termination, and shall continue to pay
all Base compensation and pro rata bonus amounts, if any, accrued pursuant to
Sections 4(a) and (b) for the number of months remaining in the Term.
(c) For Cause. If Executive's employment is terminated with Cause
(as defined in Section 6(a) below), the Company shall pay to Executive all Base
Compensation accrued through the date of termination pursuant to Sections 4(a)
and 4(b) above, whereupon the Company shall have no further obligations to
Executive under this Agreement. Without waiving any rights the Company may have
hereunder or otherwise, the Company hereby expressly reserves its rights to
proceed against Executive for damages in connection with any claim or cause of
action that the Company may have arising out of or related to Executive's
employment hereunder.
(d) Termination By The Company Without Cause or Voluntary
Termination By Executive With Good Reason. If Executive's employment with the
Company is terminated by the Company without Cause, or is Voluntarily Terminated
(as defined in Section 6(b) below) by Executive with Good Reason (as defined in
Section 6(c) below), the Company shall pay to Executive all Base Compensation
and pro rata bonus amounts, if any, accrued pursuant to Sections 4(a) and 4(b)
above through the date of such termination and shall continue to pay Executive's
Base Compensation and pro rata bonus amounts, if any, accrued pursuant to
Sections 4(a) and (b) for the longer of (i) the number of months remaining in
the Term or (ii) twelve (12) months.
(e) Voluntary Termination By Executive Without Good Reason. If
Executive's employment with the Company is Voluntarily Terminated by Executive
without Good Reason, the Company shall pay to Executive all Base Compensation
and bonus accrued through the date of termination pursuant to Sections 4(a) and
4(b) above, whereupon the Company shall have no further obligations to Executive
under this Agreement. Without waiving any rights the Company
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may have hereunder or otherwise, the Company hereby expressly reserves its
rights to proceed against Executive for damages in connection with any claim or
cause of action that the Company may have arising out of or related to
Executive's employment hereunder.
(f) Voluntary Termination By Executive Following Change in
Control. If Executive's employment with the company is Voluntarily Terminated by
Executive within 30 days of a Change in Control (as defined in Section 6(d)
below), the Company shall pay to Executive all Base Compensation and pro rata
bonus amounts, if any, accrued pursuant to Sections 4(a) and (b) for the longer
of (i) the number of months remaining in the Term or (ii) twelve (12) months.
(g) Termination Obligations.
(i) Executive hereby acknowledges and agrees that all
personal property and equipment furnished to or prepared by Executive in the
course of or incident to his employment by the Company, belongs to the Company
and shall be promptly returned to the Company upon termination of the Term.
"Personal property" includes, without limitation, all books, manuals, records,
reports, notes, contracts, lists, and other documents, or materials, or copies
thereof (including computer files), and all other proprietary information
belonging, or relating to the business of, the Company or any affiliate.
Following termination, Executive will not retain any written or other tangible
materials containing any proprietary information of the Company or any
affiliate.
(ii) Upon termination of the Term, Executive shall be
deemed to have resigned from all offices, directorships and similar positions
then held with the Company or any affiliate.
(iii) The representations and warranties contained herein
and Executive's obligations under Sections 8 and 9 shall survive termination of
the Term and the expiration or termination of this Agreement. Any provision
hereof required to give meaning and effect to such surviving provisions shall
also survive the termination of the Term and the expiration or termination of
this Agreement.
6. Definitions. For the purposes of this Agreement the following terms
and phrases shall have the following meanings:
(a) "Cause" shall mean a termination of Executive's employment by
the Company due to (i) conduct intended to or likely to injure the Employer's
business or reputation; (i) a material breach by the Executive of this Agreement
or significant failure by the Executive to satisfactorily perform his duties of
employment; (iii) any other misconduct or performance shortcomings which
constitute "cause" for discharge under Washington law.
(b) "Voluntary Termination" shall mean the termination by
Executive of his employment by the Company by voluntary resignation or any other
means other than (i) death or a Permanent Disability, (ii) simultaneous with
termination for Cause or (iii) simultaneous with or
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following an event which, whether or not known to the Company at the time of
such Voluntary Termination by Executive, would constitute Cause.
(c) "Good Reason" shall mean, with respect to a Voluntary
Termination, (i) if (A) such Voluntary Termination occurs within the thirty (30)
day period immediately following a permanent material reduction of Executive's
duties and responsibilities or a permanent change in Executive's duties and
responsibilities such that Executive's duties and responsibilities are
inconsistent with the type of duties and responsibilities of Executive in effect
immediately prior to such reduction or change, (B) such Voluntary Termination
promptly follows a reduction in Executive's benefits, or (C) the President or
the Board otherwise determines that a Voluntary Termination by Executive is for
"Good Reason" under the circumstances then prevailing, and (ii) if Executive
provides written notice of such Good Reason to the Company and the Company does
not correct the circumstances giving rise to such Good Reason during the
following 30-day period.
(d) "Change In Control" means the occurrence of any one of the
following events:
(i) any recapitalization, consolidation or merger of the
Company in which the Company is not the continuing or surviving entity or which
contemplates that all or substantially all of the business and/or assets of the
Company shall be controlled by another person or entity other than the person or
entity which controlled the Company immediately prior to such recapitalization,
consolidation or merger;
(ii) any sale, lease, exchange or transfer (in one
transaction or series of related transactions) of all or substantially all of
the assets of the Company;
(iii) approval by the members of the Company of any plan
or proposal for the liquidation or dissolution of the Company, unless such plan
or proposal is abandoned within 60 days following such approval; or
(iv) sale or other disposition by Xxxxx X. Xxxxxxxxx of
his beneficial interest in the Company.
7. Records and Confidential Information.
(a) Executive acknowledges that, in connection with the
performance of his duties during the term of this Agreement, the Company will
make available to Executive, or Executive will have access to, certain
Confidential Information (as defined below) and Trade Secrets (as defined by the
Uniform Trade Secrets Act) of the Company and its affiliates. Executive
acknowledges and agrees that any and all Confidential Information or Trade
Secrets of the Company learned or obtained by Executive during the course of his
employment by the Company or otherwise (including, without limitation,
information that Executive obtained through or in connection with his ownership
of and employment by the Company prior to the date hereof) whether developed by
Executive alone or in conjunction with others or otherwise, shall be and is the
property of the Company and its affiliates.
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(b) Confidential Information and Trade Secrets of the Company
will be kept confidential by Executive, will not be used in any manner which is
detrimental to the Company, will not be used other than in connection with
Executive's discharge of his duties hereunder, and will be safeguarded by
Executive from unauthorized disclosure.
(c) Immediately upon Executive's termination hereunder, Executive
will return to the Company all written Confidential Information and Trade
Secrets of the Company will have been provided to Executive, and Executive will
destroy all copies (whether stored on magnetic tape, hard copy, as computer
data, or otherwise) of any analyses, compilations, studies or other documents
(whether stored on magnetic tape, hard copy, as computer data, or otherwise)
prepared by Executive or for Executive's use containing or reflecting any
Confidential Information or Trade Secrets of the Company. Within five business
days of the Executive's termination hereunder Executive will deliver to the
Company a notarized document certifying that such written Confidential
Information and Trade Secrets of the Company have been returned or destroyed in
accordance with this Section.
(d) For the purposes of this Agreement, "Confidential
Information" shall mean all confidential and proprietary information to the
Company, and its affiliates, including, without limitation, the Company's
marketing strategies, pricing policies or characteristics, customers and
customer information, product or product specifications, designs, manufacturing
processes, manufacturing costs, cost of materials, customer lists, business or
business prospects, plans, proposals, codes, marketing studies, research,
reports, investigations, or other information of similar character. For purposes
of this Agreement, Confidential Information shall not include and Executive's
obligations under this Section shall not extend to (i) information which is
generally available to the public or within the industry, (ii) information
obtained by Executive from third persons not under agreement to maintain the
confidentiality of the same and (iii) information which is required to be
disclosed by law or legal process.
(e) This Section is not intended to, and does not, limit in any
way Executive's duties and obligations to the Company under statutory and common
law not to disclose or make personal use of any Confidential Information or
Trade Secrets of the Company.
8. Assignment of Inventions.
(a) Definition of Inventions. "Inventions" means discoveries,
developments, concepts, ideas, methods, designs, improvements, inventions,
formulas, processes, techniques, programs, know-how and data, whether or not
patentable or registerable under copyright or similar statutes, except any of
the foregoing that (i) is not related to the business of the Company or its
affiliates, or the Company's (and its affiliates') actual or demonstrable
research or development (ii) does not involve the use of any equipment,
supplies, facility or Confidential Information of the Company, (iii) was
developed entirely on Executive's own time, and (iv) does not result from any
work performed by Executive for the Company.
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(b) Assignment. Executive agrees to and hereby does assign to the
Company, without further consideration, all of his right, title and interest in
any and all Inventions he may make during the term hereof.
(c) Duty to Disclose and Assist. Executive agrees to promptly
disclose in writing all Inventions to the Company, and to provide all assistance
reasonably requested by the Company in the preservation of the Company's
interests in the Inventions including obtaining patents in any country
throughout the world. Such services will be without additional compensation if
Executive is then employed by the Company and for reasonable compensation and
subject to his reasonable availability if he is not. If the Company cannot,
after reasonable effort, secure Executive's signature on any document or
documents needed to apply for or prosecute any patent, copyright, or other right
or protection relating to an Invention, whether because of his physical or
mental incapacity or for any other reason whatsoever, Executive hereby
irrevocably designates and appoints the Company and its duly authorized officers
and agents as his agent and attorney-in-fact, to act for and in his behalf and
in his name and xxxxx for the purpose of executing and filing any such
application or applications and taking all other lawfully permitted actions to
further the prosecution and issuance of patents, copyrights, or similar
protections thereon, with the same legal force and effect as if executed by him.
(d) Ownership of Copyrights. Executive agrees that any work
prepared for the Company, which is eligible for copyright protection under the
laws of the United States or any other country, shall be a work made for hire
and ownership of all copyrights (including all renewals and extensions) therein
shall vest in the Company. If any such work is deemed not to be a work made for
hire for any reason, Executive hereby grants, transfers and assigns all right,
title and interest in such work and all copyrights in such work and all renewals
and extensions thereof to the Company, and agrees to provide all assistance
reasonably requested by the Company in the establishment, preservation and
enforcement of the Company's copyright in such work, such assistance to be
provided at the Company's expense but without any additional compensation to
Executive. Executive hereby agrees to and does hereby waive the enforcement of
all moral rights with respect to the work developed or produced hereunder,
including without limitation any and all rights of identification of authorship
and any and all rights of approval, restriction or limitation on use or
subsequent modifications.
(e) Litigation. Executive agrees to render assistance and
cooperation to the Company at its request regarding any matter, dispute or
controversy with which the Company may become involved and of which Executive
has or may have reason to have knowledge, information or expertise. Such
services will be without additional compensation if Executive is then employed
by the Company and for reasonable compensation and subject to his reasonable
availability if he is not.
9. Covenants Not to Compete.
(a) Non-Interference with Customer Accounts. Executive covenants
and agrees that, during the Term, and for a period of eighteen (18) months after
the date of termination of Executive's employment with the Company, Executive
shall not, directly or indirectly, personally
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or on behalf of any other person, business, corporation, or entity, contact or
do business with any customer of the Company with respect to any Internet
filtering product or service which is competitive with any product or service
which was sold, provided, or under development by the Company at any time during
the twelve-month period prior to the date of termination of Executive's
employment with the Company. This covenant applies to those customers and the
related entities of those customers to which the Company sold its Internet
filtering products or services at any time during the twelve-month period prior
to the date of termination of Executive's employment with the Company, and those
prospective customers with which the Company actively pursued sales or the
provision of services at any time during the twelve-month period prior to the
date of termination of Executive's employment with the Company.
(b) Noncompetition. Executive covenants and agrees that, during
the Term, and for a period of eighteen (18) months after the date of termination
of Executive's employment with the Company, Executive shall not, directly or
indirectly, own an interest in, operate, join, control, advise, work for, serve
as a director of, have a financial interest which provides any control of, or
participate in any corporation, partnership, proprietorship, firm, association,
person, or other entity (collectively, "Businesses") producing, designing,
providing, soliciting orders for, selling, distributing, or marketing any
Internet filtering products, goods, equipment, or services which are similar to
any Internet filtering products, goods, equipment or services produced, sold or
provided by the Company at any time during the twelve-month period prior to the
date of termination of Executive's employment with the Company. THE PARTIES
ACKNOWLEDGE THAT THE COMPANY PROVIDES SERVICES ON A WORLD WIDE BASIS AND,
ACCORDINGLY THAT IT IS NOT FAIR OR APPROPRIATE TO RESTRICT THE FOREGOING
COVENANT GEOGRAPHICALLY.
(c) This covenant does not prohibit the mere ownership of less
than two percent (2%) of the outstanding stock of any publicly traded
corporation as long as Executive is not otherwise in violation of this covenant.
(d) Non-Diversion. During the Term, and for a period of eighteen
(18) months after the date of termination of Executive's employment with the
Company, Executive shall not divert or attempt to divert or take advantage of or
attempt to take advantage of any actual or potential business or opportunities
of the Company or its subsidiaries or affiliates which Executive became aware of
as the result of his employment with the Company.
(e) Non-Recruitment. Executive agrees that the Company has
invested substantial time and effort in assembling its present workforce.
Accordingly, Executive agrees that during the Term and for a period of eighteen
(18) months after the date of termination of Executive's employment with the
Company, Executive shall not (i) hire away any individuals who were employed by
the Company or its subsidiaries or affiliates during the twelve-month period
prior to the date of termination of Executive's employment with the Company or
(ii) directly or indirectly entice, solicit or seek to induce or influence any
such employees to leave their employment with the Company or its subsidiaries or
affiliates.
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(f) Non-Disparagement. Executive and the Company mutually
covenant and agree that, during the Term and for a period of eighteen (18)
months after the date of termination of Executive's employment with the Company,
neither shall, directly or indirectly disparage the other.
(g) Remedies. Both parties acknowledge that should they
materially breach this Agreement, it will be difficult to determine the
resulting damages to the non-breaching party, and, in addition to any other
remedies the non-breaching party may have, the non-breaching party shall be
entitled to temporary injunctive relief without being required to post a bond
and to permanent injunctive relief without the necessity of proving actual
damage. In the event of any action or proceeding to interpret or enforce this
Agreement, the prevailing party shall be entitled to recover its reasonable
attorneys' fees and costs, whether or not litigation is actually commenced and
including litigation of any appeal. Failure of either party to seek any or all
remedies in one case does not restrict that party from seeking any remedies in
another situation, and no such action shall not constitute a waiver of any of
the party's rights. (h) Severability and Modification of Any Unenforceable
Covenant. It is the parties' intent that each of the Covenants be read and
interpreted with every reasonable inference given to its enforceability.
However, it is also the parties' intent that if any term, provision or condition
of the Covenants is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the provisions thereof shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
Finally, it is also the parties' intent that if a court should determine any of
the Covenants are unenforceable because of over breadth, then the court shall
modify said covenant so as to make it reasonable and enforceable under the
prevailing circumstances.
(i) Tolling. In the event of the breach by Executive of any
Covenant the running of the period of restriction shall be automatically tolled
and suspended for the amount of time that the breach continues, and shall
automatically recommence when the breach is remedied so that the Company shall
receive the benefit of Executive's compliance with the Covenants.
10. No Assignment. This Agreement and the rights and duties hereunder
are personal to Executive and shall not be assigned, delegated, transferred,
pledged or sold by Executive without the prior written consent of the Company.
Executive hereby acknowledges and agrees that the Company may assign, delegate,
transfer, pledge or sell this Agreement and the rights and duties hereunder to
any third party acquiring through merger, consolidation or purchase all or
substantially all of the business and/or assets of the Company. This Agreement
shall inure to the benefit of and be enforceable by the parties hereto, and
their respective heirs, personal representatives, successors and assigns.
11. Miscellaneous Provisions.
(a) Payment of Taxes. To the extent that any taxes become payable
by Executive by virtue of any payments made or benefits conferred by the
Company, the Company shall not be liable to pay or obligated to reimburse
Executive for any such taxes or to make any adjustment under this Agreement. Any
payments otherwise due under this Agreement to
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Executive, including, but not limited to, the Base Compensation and any bonus,
shall be reduced by any required withholding for federal, state and/or local
taxes and other appropriate payroll deductions.
(b) Insurance. The Company may, from time to time, apply for and
take out, in its own name and at its own expense, life, health, accident,
disability or other insurance on Executive in any sum or sums that it may deem
necessary to protect its interests, and Executive shall aid and cooperate in all
reasonable respects with the Company in procuring any and all such insurance,
including, without limitation, submitting to the usual and customary medical
examinations, and by filling out, executing and delivering such applications and
other instruments in writing as may be reasonably required by an insurance
company or companies to which an application or applications for such insurance
may be made by or for the Company. In order to induce the Company to enter into
this Agreement, Executive represents and warrants to the Company that, to his
knowledge, Executive is insurable at standard (non-rated) premiums.
(c) Deceased Executive. In the event that Executive shall die
while entitled to benefits hereunder, the payment which would otherwise be made
to Executive, shall be made to the estate, or other appropriate legal
representative, of Executive.
(d) Notices. All notices, offers or other communications required
or permitted to be given pursuant to this Agreement shall be in writing and
shall be considered as properly given or made if (i) delivered personally, (ii)
mailed from within the United States by certified mail, return receipt
requested, postage prepaid, (iii) sent by prepaid telegram or facsimile
transmission (with written confirmation of receipt) or (iv) sent by overnight
delivery service. All notices given or made pursuant hereto shall be so given or
made to the parties at the following addresses, or to any other address the
addressee may have notified the sender beforehand referring to this Agreement,
and shall be deemed effective when so given or made at such address whether or
not the recipient still resides at that address or actually receives the notice
(so long as such notice was actually delivered to such address):
If to Executive:
Xxxxx X. Xxxx
000 XX 00xx Xxxxxx
Xxxxxxx, XX 00000
If to the Company:
N(2)H(2), Inc.
000 0xx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
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With a copy to:
Xxxx Xxxxxx Spears Lubersky LLP
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxx X. Xxxxxxxx
Facsimile: (000) 000-0000
(e) Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal or unenforceable, such
provision shall be severed and enforced to the extent possible or modified in
such a way as to make it enforceable, and the invalidity, illegality or
unenforceability thereof shall not affect the validity, legality or
enforceability of the remaining provisions of this Agreement.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Washington applicable to
contracts executed in and to be performed entirely within that state, except
with respect to matters of law concerning the internal corporate affairs of any
corporate entity which is a party to or the subject of this Agreement, and as to
those matters, the law of the jurisdiction under which the respective entity
derives its powers shall govern.
(g) Counterparts. This Agreement may be executed in counterparts,
each of which shall be an original, but all of which shall constitute one and
the same instrument.
(h) Entire Understanding. This Agreement, including all Recitals
hereto which are incorporated herein by this reference, together with the other
agreements and documents being executed and delivered concurrently herewith by
Executive, the Company and certain of its affiliates, constitute the entire
understanding among all of the parties hereto and supersedes any prior
understandings and agreements, written or oral, among them respecting the
subject matter within.
(i) Pronouns and Headings. As used herein, all pronouns shall
include the masculine, feminine, neuter, singular and plural thereof wherever
the context and facts require such construction. The headings, titles and
subtitles herein are inserted for convenience of reference only and are to be
ignored in any construction of the provisions hereof.
(j) Amendments. Except as specifically set forth herein, this
Agreement shall not be changed or amended unless in writing and signed by both
Executive and the President (or other officer of the Company designated by the
Board).
(k) Executive's Acknowledgment. Executive acknowledges (i) that
he has consulted with or has had the opportunity to consult with independent
counsel of his own choice concerning this Agreement and has been advised to do
so by the Company, and (ii) that he has read and understands this Agreement, is
fully aware of its legal effect, and has entered into it freely based on his own
judgment.
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(l) Arbitration. It is understood and agreed between the parties
hereto that any claim of any nature whatsoever arising out of or connected with
Executive's employment with the Company, including but not limited to wrongful
termination, breach of contract, defamation, and claims of discrimination
(including age, disability, sex, religion, race, national origin, color, etc.)
or harassment, whether under federal, state or local laws, common law or in
equity, shall be decided by submission to final and binding arbitration. The
arbitrator shall be a retired or former superior court or appellate court judge.
This arbitration provision shall be governed by the Federal Arbitration Act the
arbitration shall be and pursuant to rules and procedures hereafter adopted by
the Company, and failing such adoption, the Federal Rules of Civil Procedure.
Any arbitration hereunder shall be conducted in Seattle, Washington. Judgment
shall be final upon the award rendered by the arbitrator and may be entered in
any court having jurisdiction thereof. It is further understood and agreed
between the parties hereto that actions seeking temporary injunctions are hereby
excluded from arbitration and, therefore, may be sought in a court of
appropriate jurisdiction without resort to arbitration, even though resolution
of the underlying claim must be submitted to arbitration. Provided: This Section
shall not govern any matter arising out of Executive's violation of, or
threatened violation of, the terms of the Employee Intellectual Property
Agreement attached hereto as Appendix A and incorporated herein by reference
("IP Agreement"), or Executive's violation of the covenants contained in
Sections 10 of this Agreement, in which event the Company shall be entitled to
seek injunctive or other equitable relief in any state or federal court located
in King County, Washington, and the parties agree to submit to the jurisdiction
of such court.
(m) Delivery by Facsimile. The parties agree that counterparts of
this Agreement may be executed and delivered by facsimile, followed by regular
mailing of original signed counterparts.
IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written.
THE COMPANY:
THE EXECUTIVE:
N2H2, INC.
/s/ XXXXX X. XXXX
--------------------------------------
By /s/ XXXXX X. XXXXXXXXX Xxxxx X. Xxxx
-------------------------------
Its President
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