EXHIBIT 10.108(a)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is made and entered into by
and between INTERLAND, INC., a Georgia corporation having its principal
executive offices located at the business address of 000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (the "COMPANY"), and Xxxxx Xxxxxxx, an
individual residing in Marietta, Georgia ("EXECUTIVE"). Company and Executive
enter into this Agreement as of the date they each have signed it, but the
Agreement shall be effective as of the date established pursuant to Section 2.1,
below.
WHEREAS, Company desires to employ Executive as the Vice President, General
Counsel and Corporate Secretary as of November 1, 2001, and whereas the parties
wish to establish certain terms and conditions of such employment by entering
into this Agreement; and
WHEREAS, Executive desires such employment with Company on the terms and
conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, the parties hereby agree as follows:
1. Employment; Regular Compensation. Company agrees to employ Executive
as Vice President, General Counsel and Corporate Secretary, and Executive agrees
to serve Company as Vice President, General Counsel and Corporate Secretary on
the terms and conditions set forth in this Agreement. Company shall pay
Executive an initial base salary (the "BASE SALARY") as set forth in Company's
offer letter dated September 26, 2001 and attached hereto as EXHIBIT 1. The Base
Salary set forth in the offer letter is expressed as an annual amount solely for
reference purposes, and shall be payable to Executive on a bi-weekly basis. In
its sole discretion, the Company may change Executive's compensation.
2. Effective Date; Indefinite Term.
2.1 This Agreement shall be deemed in full force and effect as of
the date it is executed by the parties below, along with the execution of any
exhibits hereto;
2.2 This Agreement has an indefinite term, and Executive's employment
by Company hereunder may be terminated at will by either party at any time, with
or without Cause (as defined in Section 6.1, below) or any reason, voluntary or
involuntary, and with or without prior notice. Certain provisions of this
Agreement, however, as more fully set forth in Section 5, below, provide for the
payment of benefits to Executive upon the specified circumstances of termination
of Executive's employment with Company, and certain other provisions, as more
fully set forth below in Section 11, below, may continue in effect beyond the
date of such termination. Executive expressly acknowledges and agrees that
employment with Company is on an "at will" basis, and that this Agreement does
not provide a guarantee of continued employment, notwithstanding any other
provision in this Agreement.
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3. Duties. Executive shall report to Xxxx Xxxxxx, Chairman and Chief
Executive Officer, or such other individual as may be designated from time to
time by Xxxx Xxxxxx or the Board of Directors (the "BOARD"). Executive shall
faithfully and diligently perform all such acts and duties, and furnish such
services, as are assigned to Executive by Xxxx Xxxxxx, Chairman and Chief
Executive Officer, or such other individual as may be designated by Xxxx Xxxxxx
or the Board.
4. Efforts; Conflicts of Interest. During Executive's employment by
Company, Executive shall devote his full business time and efforts to Company
and its business during normal business hours, and shall safeguard and promote
its lawful interests. During Executive's employment by Company, Executive shall
not, either directly or indirectly, engage in or enter into any business or
perform any services for any other person, firm, association, or corporation
that conflicts with Executive's efforts to Company or with Company's business
interests, except for: (a) serving on the board of directors of any other entity
that is not in competition with Company (subject to Company's approval, which
shall not be unreasonably withheld or delayed); (b) activities approved in
writing in advance by Xxxx Xxxxxx or the Board, which approval shall not be
unreasonably withheld or delayed; or (c) passive investments in entities that do
not involve Executive providing any advice or services to the businesses in
which the investments are made, or which do not violate Company policy,
including without limitation any policy relating to conflicts of interest or
business ethics.
5. Benefits Upon Termination of Employment.
5.1 By Company for Cause or by Executive Without Good Reason. If
Executive's employment is terminated by Company for Cause or by Executive
Without Good Reason (as defined in Section 6.5, below), then Company's
obligation to pay compensation and benefits under this Agreement shall
immediately terminate, except that: (a) Company shall pay to Executive and, if
applicable, Executive's heirs, any earned but unpaid Base Salary through such
termination date; and (b) Company shall permit Executive to receive continuation
of the benefits as set forth in Section 5.5, below, to the extent applicable.
Under such circumstances, no further payments or benefits (except as otherwise
required by law) shall be provided to Executive. The terms "Cause" and "Without
Good Reason" shall have the meaning set forth in Section 6, below.
5.2 By Company for Nonperformance Due to Disability. If Executive's
employment is terminated by Company for Nonperformance Due to Disability, then
Company's obligation to pay compensation and benefits under this Agreement shall
immediately terminate, except that: (a) Company shall pay to Executive and, if
applicable, Executive's heirs, any earned but unpaid Base Salary through such
termination date; (b) Company shall provide Executive with such other payments
and benefits as may be permitted under the Company's short- or long-term
disability plans, to the extent applicable, and subject to the terms and
conditions of such plans, including without limitation any eligibility
requirements; and (c) Company shall permit Executive to receive continuation of
the benefits as set forth in Section 5.5, below, to the extent applicable. The
term "Nonperformance Due to Disability" shall have the meaning set forth in
Section 6, below.
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5.3 By Company Other Than for Cause or by Executive for Good Reason.
If Executive's employment is terminated by Company other than for Cause or by
Executive for Good Reason (as defined in Section 6.3, below), then Company's
obligation to pay compensation and benefits under this Agreement shall
immediately terminate, except that: (a) Company shall pay to Executive and, if
applicable, Executive's heirs, any earned but unpaid Base Salary through such
termination date; (b) Company shall pay to Executive any earned but unpaid
incentive compensation or bonuses through the termination date, subject to the
terms of the applicable bonus plan, including without limitation any eligibility
requirements or any limitations on such payment under applicable law; (c)
Company shall permit Executive to receive continuation of the benefits as set
forth in Section 5.5, below, to the extent applicable; and (d) Company shall pay
to Executive, as severance benefits, an amount equal to 6 months of Base Salary
(the "Severance Benefits"). The Severance Benefits shall be paid in a lump sum,
as soon as practicable following such termination date, subject to the following
conditions: (x) Executive shall execute a written, complete waiver and release
of all claims relating to Company, or Executive's employment by Company or any
termination thereof, within any applicable consideration or execution periods
and in a form that is acceptable to Company; and (y) subject to confirmation by
Company that Executive does not later revoke such waiver and release of claims
within any revocation period required by applicable law.
5.4 Death of Executive. In the event of Executive's death,
Executive's employment and all other obligations hereunder shall automatically
terminate and the Company's obligation to pay compensation and benefits under
this Agreement shall immediately terminate, except that Company shall pay to
Executive's estate: (a) Executive's Base Salary through the end of the calendar
month in which Executive's death occurs; (b) Executive's earned but unpaid
incentive compensation or bonuses through the date of Executive's death, subject
to the terms and conditions of the applicable Bonus Plan, including without
limitation any eligibility requirements or any limitations on such payment under
applicable law; and (c) Company shall permit Executive's heirs to receive
continuation of the benefits as set forth in Section 5.5, below, to the extent
applicable and allowed by law and subject to the terms of such plans.
5.5 Benefits Continuation. Upon termination of Executive's
employment, Company shall permit Executive and, if applicable, Executive's
family members, to continue to participate in Company's employee benefits plans,
to the extent required or allowed by law and subject to the terms of such plans
and applicable law.
6. Definitions.
6.1 "CAUSE" shall mean termination of Executive's employment by
Company for one or more of the following reasons: (a) Executive has breached or
threatens to breach a fiduciary duty owed to Company; (b) Executive has engaged
or threatens to engage in dishonesty, fraud, gross negligence, willful
malfeasance or other acts of misconduct in the performance of Executive's duties
or during the course of Executive's employment; (c) upon the willful and
continued failure by Executive substantially to perform Executive's duties with
the Company (other than by reason of Nonperformance Due to Disability as defined
below);
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(d) Executive has willfully violated or threatens to violate Company policies,
or has willfully violated or threatens to violate any law, rule or regulation
(other than traffic violations or similar offenses) which result in material
injury to Company; or (e) Executive has violated or threatens to violate the
terms of Sections 4, 7, or 8 of this Agreement or the material terms of the
Confidentiality and Non-Competition Agreement, or any other material breach of
this Agreement.
6.2 "DISABILITY" shall have the meaning ascribed to such term or
its variations, such as "Disabled," in Company's long-term disability plan, or
in the absence of such plan, a meaning consistent with the definition of
permanent and total disability under Section 22(e)(3) of the Internal Revenue
Code of 1986, as amended.
6.3 "GOOD REASON" shall mean that one or more of the following
events has occurred and, after giving Company written notice of the occurrence
and of Executive's intention to resign from employment and Company not curing
the event within 30 days of receipt of such written notice: (a) a substantial
adverse change in Executive's duties or responsibilities, without Executive's
consent; (b) a reduction in Executive's Base Salary (at the annualized rate),
without Executive's consent, by more than 25%; or (c) a relocation of
Executive's principal place of employment by more than a 50 mile radius
surrounding Atlanta, Georgia, without Executive's consent.
6.4 "NONPERFORMANCE DUE TO DISABILITY" shall mean that, if because
of Disability, Executive is unable to perform the essential functions of
Executive's job, with or without reasonable accommodation, for a period of 30
consecutive days in any calendar year.
6.5 "WITHOUT GOOD REASON" shall mean termination or resignation of
Executive's employment by Executive other than for Good Reason.
7. Non-Disparagement. Executive shall not at anytime make false,
misleading or disparaging statements about the Company, its parent, subsidiaries
or affiliates, including any of their products, services, management, directors,
officers, employees, and customers.
8. Confidential Information and Covenants Not to Compete. The parties
agree that Executive's services to Company are of a unique value and that
confidential and proprietary information about Company has been or will be
obtained by, disclosed or otherwise made available to Executive as a result of
Executive's employment with Company. Accordingly, as a condition to Executive's
employment, Executive and Company also are entering into the Confidentiality,
Invention Assignment, and Non-Competition Agreement attached hereto as EXHIBIT 2
(the "CONFIDENTIALITY AND NON-COMPETITION AGREEMENT").
9. Dispute resolution process. All disputes between Executive and
Company that otherwise could be resolved in court shall be resolved instead by
the following alternative dispute resolution process (the "PROCESS").
9.1 Disputes Covered. This Process applies to all disputes between
Executive and Company, including those arising out of or related to this
Agreement or
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Executive's employment by Company. Disputes subject to this Process include but
are not limited to pay disputes, contract disputes, legal disputes, wrongful
termination disputes, and discrimination, harassment or civil rights disputes.
This Process applies to disputes Executive may have with Company and also
applies to disputes Executive may have with any of Company's employees or agents
so long as the person with whom Executive has the dispute is also bound by or
consents to this Process. This Process applies regardless of when the dispute
arises and will remain in effect after Executive's employment with Company ends,
regardless of the reason it ends. This Process does not apply, however, to any
workers' compensation or unemployment compensation claims, to the extent
applicable under the circumstances.
9.2 Negotiation and Mediation. Executive and Company agree to attempt
to resolve all disputes first by direct negotiations. If direct negotiations are
not successful, the parties shall then use mediation. They shall first attempt
to agree upon a mediator. If unable to agree upon a mediator, the parties shall
request and conduct mediation under the American Arbitration Association's
National Rules for the Resolution of Employment Disputes. Unless otherwise
agreed by the parties, any mediation sessions shall be held in Atlanta, Georgia.
Temporary or interim injunctive relief may be sought without mediating first.
Any failure to mediate shall not affect the validity of an arbitration award or
the obligation to arbitrate.
9.3 Arbitration. If the dispute is not resolved through negotiation
and mediation, the parties shall request, and either party may demand,
arbitration pursuant to the American Arbitration Association's National Rules
for the Resolution of Employment Disputes. Unless otherwise agreed by the
parties, any arbitration hearing shall be held in Atlanta, Georgia. The decision
of the arbitrator shall be final and binding on the parties and on all persons
and entities claiming through the parties. Submission of their dispute to
arbitration shall be the exclusive means for resolving the dispute, to the
exclusion of any trial by a court or jury. All disputes that are not resolved by
agreement (in mediation or otherwise) shall be determined by binding
arbitration.
9.4 Injunctive Relief. Either party may request a court to issue such
temporary or interim relief (including temporary restraining orders and
preliminary injunctions) as may be appropriate, either before or after mediation
or arbitration is commenced. The temporary or interim relief shall remain in
effect pending the outcome of mediation or arbitration. No such request shall be
a waiver of the right to submit any dispute to mediation or arbitration.
9.5 Employment Status. This Process does not affect the status of the
employment relationship between the parties, which as stated above in Section
2.2 shall be "at will;" nor does this Process guarantee continued employment by
the Company, require discharge only for cause, or require any particular
corrective action or discharge procedures.
10. Notification. Executive hereby authorizes the Company, or any of its
employees or designated representatives or counsel, to notify Executive's actual
or future employers or any governmental agency of any terms of this Agreement or
the Confidentiality and Non-Competition Agreement and Executive's
responsibilities or obligations hereunder.
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11. Severability; Survival of Provisions. If any part of this Agreement or
any part of the Confidentiality and Non-Competition Agreement is held by any
legal authority to be unenforceable or is severed by any legal authority, the
remainder of such agreement shall be enforced to the maximum extent allowed by
applicable law. Certain provisions of this Agreement, including confidential
information and covenants not to compete (Section 8), dispute resolution process
(Section 9), notification (Sections 10 and 21), and governing law (Section 18)
of this Agreement, and all of the provisions of the Confidentiality and
Non-Competition Agreement, shall survive after any such legal determination,
after Executive's employment by Company ends regardless of the reason it ends,
and shall be enforceable regardless of any such determination or any claim
Executive may have against Company.
12. Relief for Breach. Because any breach or threatened breach by Executive
of Sections 4, 7, and 8 of this Agreement or of the Confidentiality and
Non-Competition Agreement would result in continuing material and irreparable
harm to Company, and because it would be difficult or impossible to establish
the full monetary value of such damage, Company shall be entitled to injunctive
relief in the event of any such breach or threatened breach by Executive.
Injunctive relief is in addition to any other available remedy, including
termination of this Agreement and damages. In the event of any threatened breach
of this Agreement by Executive, Company may suspend any payment of Base Salary,
incentives, bonuses, Severance Benefits and other compensation due to Executive
under this Agreement and, if Executive has breached this Agreement, any
remaining amounts to be paid under this Agreement shall be forfeited. In the
event of any breach or threatened breach by either party which results in
court-ordered relief, the breaching party shall reimburse the non-breaching
party for its reasonable attorneys' fees and other expenses incurred to obtain
such relief.
13. Waiver. No waiver of any provision of this Agreement shall be valid
unless in writing, signed by the party against whom the waiver is sought to be
enforced. The waiver of any breach of this Agreement or failure to enforce any
provision of this Agreement shall not waive any later breach.
14. Binding Effect. This Agreement is binding upon the parties and their
personal representatives, heirs, successors and permitted assigns.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original and all of which, taken
together, shall constitute a single agreement.
16. Complete Agreement. This Agreement, together with the attached
Confidentiality and Non-Competition Agreement, is the final and complete
expression of the parties' agreement relating to Executive's employment by the
Company. Without limiting the foregoing, this Agreement replaces and supersedes
any prior employment agreements between Executive and Company, or its parent,
subsidiaries, predecessors or affiliates, and each party to this Agreement
hereby releases and holds harmless the other party from any obligations or
liability with respect thereto. The parties acknowledge and agree that they are
not entering into this Agreement in reliance on anything not set out in this
Agreement. This Agreement
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shall control over any inconsistent policies or procedures of Company affecting
Executive's employment, whether in effect now or adopted later, but Company's
policies and procedures that are consistent with this Agreement, whether in
effect now or adopted later, shall apply to Executive's employment according to
the terms thereof.
17. Payroll Withholding. All payments of Base Salary, incentives, bonuses,
Severance Benefits and other compensation payable to Executive pursuant to this
Agreement or otherwise shall be subject to the customary withholding for income
taxes as determined appropriate by the Company, and shall be subject to other
withholdings or deductions as required with respect to such compensation paid by
a corporation to any employee.
18. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia, without giving effect to the
provisions thereof relating to choice of laws. Each party hereby irrevocably (a)
consents to the jurisdiction and venue for any legal action with the state
courts in Xxxxxx County, Georgia and federal courts in the Northern District of
Georgia, Atlanta Division, unless injunctive relief is sought by Company and, in
Company's judgment, that relief might not be effective unless obtained in some
other venue; and (b) waives any jurisdictional defenses (including personal
jurisdiction and venue) to any such action. These provisions do not give any
party a right to proceed in court in violation of the Dispute Resolution
Process under Section 9, above.
19. Successors And Assigns. All rights and duties of Company under this
Agreement shall be binding on and inure to the benefit of its successors,
assigns or any company which purchases or otherwise acquires it or all or
substantially all of its operating assets by any method. This Agreement shall
not be assignable by Executive other than the right to receive benefits being
passed by will or by the laws of descent and distribution.
20. Amendment. This Agreement contains the entire agreement of the parties
relating to the subject matter and may not be amended except by an instrument in
writing signed by both parties; it shall not be amended orally or by course of
dealing.
21. Notices. All notices required or permitted under this Agreement shall
be in writing and may be personally served or mailed by registered or certified
U.S. mail, postage prepaid and addressed as follows:
If to Company: Interland, Inc.
000 Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
If to Executive: Xxxxx Xxxxxxx
0000 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
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Any of the above addresses may be changed at any time by notice given as
provided above; provided, however, that any such notice of change of address
shall be effective only upon receipt. All notices, requests or instructions
given in accordance herewith shall be deemed received on the date of delivery,
if hand delivered or telecopied, and 3 business days after the date of mailing,
if mailed by registered or certified mail, return receipt requested.
INTERLAND, INC. EXECUTIVE
By: /s/ XXX XXXXXXXX /s/ XXXXX XXXXXXX
----------------------- -----------------------
Name: Xxx Xxxxxxxx Xxxxx Xxxxxxx
Title: SUP-Human Resources Date: 10/04/01
----------------------- -----------------
Date: 10-18-01
-----------------------
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[INTERLAND LETTERHEAD]
September 26, 2001
Xx. Xxxxx Xxxxxxx
0000 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Re: Offer of Employment
Dear Xxxxx:
On behalf of Interland, we are pleased to offer you the position of Vice
President, General Counsel and Corporate Secretary, reporting to the Chief
Executive Officer, Xxxx Xxxxxx, of Interland and contingent upon final approval
by the Board of Directors. Your anticipated start date is Monday, October 15,
2001 ("Start Date"), unless otherwise approved by Interland in advance.* You
will have the opportunity to enter into an Employment Agreement with Interland,
a copy of which will be provided to you no later than Tuesday, October 2. Your
Employment Agreement and appointment as an officer are subject to final
approval by the Board of Directors for Interland, Inc. The following highlights
the essential terms of your employment, which will become final once approved
by the Board.
Your base salary will be $9038.46 per bi-weekly pay period based on an annual
salary of $235,000. Subject to the approval of the Board of Directors, you will
be granted an option to purchase 120,000 shares of Interland, Inc. stock. The
grant will be effective the later of the date approved by the Board of
Directors or your Start Date.
In addition, you will be eligible to participate in a performance-based
incentive compensation program ("Performance Plan"), which will be
established by the Board of Directors. You will have the opportunity to earn a
target incentive of up to forty-five (45%) of the base salary actually paid to
you during the defined performance period. Your participation in the
Performance Plan will be subject to the terms and conditions under the
Performance Plan.
Interland offers a variety of health care plans and other benefits programs to
eligible team members and their dependents. Additional information concerning
these plans and programs will be provided to you with your Employment Agreement.
Your employment is contingent on your representation that you are not obligated
under any non-compete agreement or similar agreement which would prevent or
interfere with your employment by Interland, except as has been fully disclosed
in advance and in writing to Interland. Your employment is also subject to
completion of all aspects of our standard application and hiring processes for
new team members. We also will need you to provide us
*Start Date to be discussed
with documentation that you are legally authorized to work in the United
States. Further, we will require that you execute our standard new team member
forms, including, but not limited to, an Employee Invention Assignment and
Confidentiality Agreement, and an acknowledgment with respect to our Employment
Policy Manual.
Our offer of employment will remain open until close of business on Friday,
September 28, 2001. Please acknowledge your receipt of this letter and desire to
begin work on your anticipated start date by signing where indicated below, and
then respond by immediately returning this signed letter in person to Xx Xxxxx
or fax under cover letter to (000) 000-0000. If we do not receive such a
response from you by Monday, October 1, 2001, this offer will be withdrawn.
This letter is not a contract of employment. Further, the length or duration of
your employment is not guaranteed. In accordance with our policies, your
employment with us will be on an "at-will" basis, meaning that both you and we
have the right to end your employment at any time, for any reason, with or
without cause or prior notice.
Please call me at (000) 000-0000 if you have any questions about your offer of
employment.
We are excited that you will be joining the Interland team!
Sincerely,
/s/ Xxxxxx X. Xxxxx
------------------------------
Xx Xxxxx
VP, Human Resources Operations
Interland
Fax: (000) 000-0000
Phone: (000) 000-0000
I hereby acknowledge receipt of this offer letter, accept the terms, and
express my intent to begin work on the anticipated start date* set forth above.
By: /s/ Xxxxx X. Xxxxxxx Date: 9/28/01
--------------------- ---------
Xxxxx Xxxxxxx
*See note on first page
EXHIBIT 1
CONFIDENTIALITY, INVENTION ASSIGNMENT
AND NON-COMPETITION AGREEMENT
This Confidentiality, Invention Assignment, and Non-Competition Agreement,
which includes all attached exhibits (the "AGREEMENT") is made as of the
Effective Date (as defined in Section 1.6, below), by and between INTERLAND,
INC., a Georgia corporation, located at the business address of 000 Xxxxxxxxx
Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (the "COMPANY"), and the
undersigned employee of Company, located at the address specified on the
signature below (referred to in this Agreement as "ME" or "I").
In consideration of my initial employment or continued employment by
Company and other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS. I understand and agree that the terms defined in
parenthesis elsewhere in this Agreement, and the following capitalized terms,
will have the meanings there and here supplied. All of the terms may be used in
the singular or plural form.
1.1 "BUSINESS" means Company's business of hosting, designing and
developing Web sites, shared Web hosting and business hosting; supporting
resellers of Web hosting services and hosts of Web sites through co-location,
managed and dedicated server programs; supporting data centers, Web and network
infrastructure, Web site and hosted software applications; supporting e-commerce
applications and solutions, application hosting, and connectivity solutions;
supporting managed services, including without limitation system monitoring and
reporting, managed backup and recovery, and administration services; and
supporting enterprise applications.
1.2 "COMPANY" means Interland, Inc., a Georgia corporation, any of
its successors and assigns, and any of its current or future parents,
subsidiaries, affiliates or organizations, whether or not controlled by,
controlling, or under common control with it.
1.3 "CUSTOMERS" means the customers, clients, suppliers, or strategic
partners for Company's Business (a) with whom I came into contact on behalf of
Company or in the course of my performing Services for the Company during the
one-year preceding the Termination Date; or (b) about whom I possessed
Confidential Information during the one-year preceding the Termination Date.
1.4 "I" means the undersigned employee identified in the signature
block below, who also is referred to herein by use of first person pronouns,
such as "me" and "my."
1.5 "CONFIDENTIAL INFORMATION" means Company's technical and
non-technical, proprietary, confidential, Business, and other commercially
valuable information that is designated as confidential by Company, or that is
not generally known in the relevant trade or industry with respect to Company's
Business, products, processes, services, concepts, techniques, methods, or
systems, or that is conceived, originated, discovered, known, or developed in
whole or in part by me through my employment or services with respect to
Company. Such Confidential Information, the existence and non-disclosure of
which is vital to the success of Company's Business, includes, but is not
necessarily limited to: (i) programs, computer programs, formulas, system
documentation, source and/or object codes, data compilations, manuals, methods,
techniques, processes patent applications, or patented and/or unpatented
technology utilized or developed by or for Company; (ii) research, know-how,
development, designs, devices, or Inventions; (iii) customer information and
identities or lists of Customers or prospective Customers; (iv) contracts,
transactions or negotiations with Customers or suppliers; (v) sales information,
sales bids or proposals, methods of sales, pricing policies, or cost
information; (vi) marketing information or marketing plans, research and data;
(vii) Company products or services anticipated or under development; (viii)
"trade secrets" within the meaning of the Georgia Trade Secrets Act of 1990, or
other applicable trade secrets law; and (ix) any other information that Company
uses in carrying out its Business and is not fully known by actual or potential
competitors or other Persons through public or other authorized
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disclosure made by Company, including, without limitation, information about
Company's Customers, the requirements or specialized requests of Customers;
sales or marketing strategies; cost information and costing policies or
strategies; financial information or data; Business information, plans or
strategies; organizational charts, information and data; flow charts and related
information; products and services; Company's employees, operations, sources of
supply, Business methods or practices, training and training programs, and any
documentation relating to any of the foregoing under this Section 1.5.
1.6 "Effective Date" means the earliest to occur of (i) the date
that I sign this Agreement as indicated below on the signature page, or (ii) my
initial date of employment with Company.
1.7 "Inventions" means all discoveries, concepts, ideas,
improvements, designs, original works of authorship, formulas, processes,
compositions of matter, computer software programs, databases, mask works and
trade secrets that I make or conceive or first reduce to practice or create,
either alone or jointly with others, during the period of my employment, whether
or not in the course of my employment, and whether or not such Inventions are
patentable, copyrightable, or protectible as trade secrets or otherwise.
1.8 "Moral Rights" mean any rights to claim authorship of an
Invention, to object to or prevent the modification of any Invention, or to
withdraw from circulation or control the publication or distribution of any
Invention, and any similar right, existing under judicial or statutory law of
any country in the world, or under any treaty, regardless of whether or not such
right is denominated or generally referred to as a "moral right."
1.9 "Parties" means Company and me.
1.10 "Person" means any individual, corporation, bank, partnership,
joint venture, association, joint stock company, trust, unincorporated
organization or other entity.
1.11 "Services" means the services described on the EXHIBIT B to this
Agreement which is made a part hereof, and which may be amended, supplemented
and updated by the Parties as appropriate if my Services change during the
course of my employment with Company.
1.12 "Termination Date" means the last day I am employed by or
providing services for Company following the Effective Date, whether the
separation is voluntary or involuntary, with or without cause, or with or
without advance notice.
1.13 "Territory" means the area within a 50 mile radius of the county
limits of Xxxxxx County, Georgia. I hereby acknowledge that I may perform
certain Services on behalf of Company in the Territory.
2. NOT A CONTRACT OF EMPLOYMENT; EMPLOYMENT "AT WILL". I understand and
acknowledge that this Agreement is not a contract of employment and that it does
not obligate Company to employ me for any stated period of time. I further
understand and acknowledge that I am an "employee at will" of Company, which
means that my employment can be terminated by Company or me at any time, for any
reason or for no reason, voluntary or involuntary, with or without cause,
advance notice, formality or procedure.
3. NOTIFICATION. I hereby authorize Company, its parent, subsidiaries or
affiliates, or any of their designated representatives or counsel, to notify my
actual or future employers or any governmental agency or authority of any terms
of this Agreement and my responsibilities or obligations hereunder.
4. CONFIDENTIAL INFORMATION; EMPLOYEE ACCESS AND USE. I understand that
the Business of Company involves valuable, technical and non-technical,
Confidential Information of various kinds. I further understand that my
employment by Company creates a relationship of confidence and trust with
respect to any Confidential Information. I will: (i) access ad utilize only such
Confidential Information as is reasonably necessary to perform my job functions
on behalf of Company; (ii) allow access to Confidential Information under my
control to only those co-employees whose job functions for Company reasonably
necessitate access to such Confidential Information; and (iii) safeguard all
Confidential Information accessed to utilized by me to prevent
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unauthorized and unnecessary access to such Confidential Information by others.
I will exercise the highest degree of care in safeguarding this Confidential
Information against any loss, theft, inadvertent disclosure, or
misappropriation. If during or after my employment I have any questions as to
what comprises Confidential Information or proprietary information or trade
secrets of Company, I will immediately consult in writing with an officer of
Company.
5. CONFIDENTIALITY AND NONDISCLOSURE. I will utilize Confidential
Information of Company only to the extent necessary to perform my duties as an
employee of Company for the benefit of Company. At all times, both during my
employment and after its termination, I will keep and hold all Confidential
Information of Company in strict confidence and trust. I will not use or
disclose any Confidential Information of Company to any Person not then employed
with Company, unless authorized or directed to do so in writing by an officer of
Company. I understand that if Company authorizes or directs me to disclose
Confidential Information to any third party, I must ensure that a Company
approved and signed confidentiality or nondisclosure agreement is or has been
obtained from the third party to whom the Confidential Information is being
disclosed, and that all Confidential Information so disclosed is clearly marked
and treated as "confidential." I will not use or disclose any information
Company received from other Persons that Company is obligated to treat as
confidential or proprietary, without the prior written consent of Company. I
will not disclose any Confidential Information of Company under a fictitious,
no-name or anonymous basis to any Person, or through my access or use, directly
or indirectly, of any Internet or Web site, posting, message board, chat room,
or similar communication system.
6. RETURN OF INFORMATION AND PROPERTY. Upon termination of my employment
or at any time upon request of Company, I will promptly deliver to Company all
documents and materials of any nature, and any copies thereof, pertaining to my
work for Company, or relating to Company or Company's Confidential Information
or any other Business information, including, but not necessarily limited to,
correspondence, drawings, blueprints, manuals, letters, notes, lists, notebooks,
reports, flow charts, computer programs, proposals, sales documents, DayTimers,
planners, calendars, schedules, discs, data tapes, financial plans and
information, business plans, and other documents and records, whether in hard
copy, magnetic media or otherwise, and any and all copies thereof. I will not
keep or take with me after my employment any documents or materials or copies
thereof containing any Confidential Information. Upon termination of my
employment or at any time upon request of Company, I will promptly return all
other Company property.
7. NO BREACH OF PRIOR AGREEMENT; INDEMNIFICATION. I represent and
warrant that my performance of all the terms of this Agreement and my duties as
an employee of Company does not violate any agreement or obligation I may have
to any other Person, and that I am in all respects duly qualified and eligible
to work for Company. I also promise that I am not subject to any invention
assignment, proprietary information, confidentiality, nonsolicitation,
noncompetition or similar agreement with any former employer or other Person,
except as has been fully disclosed in advance and in writing by me to Company. I
represent and warrant that I have not and will not bring with me to Company or
use in the performance of my duties for Company or in connection with my
employment by Company any documents or materials or intangibles belonging to
another Person, third party, or a former employer (other than Company, its
parent, subsidiaries or affiliates), that are not generally available to the
public or have not been legally transferred to Company, unless consented to in
writing by such Person, third party, or former employer. In the event any legal
or administrative action is commenced against me, Company, or both of us,
arising out of my prior employment by another employer or my wrongful action or
violation of any of the representations and warranties set forth in this Section
7, I agree to indemnify and hold harmless Company for all damages, costs and
expenses, including reasonable attorney fees, which Company may have to pay in
connection with such legal or administrative action.
8. DISCLOSURE OF INVENTIONS. With respect to Inventions made or
conceived by me, whether or not during my hours of employment or with the use of
Company facilities, materials, or personnel, either solely or jointly with
another or others, during (a) my employment with Company, or (b) within one-year
after termination of my employment, without royalty or other consideration to me
therefore, I will inform Company in confidence, promptly and fully of such
Invention by a written report setting forth in detail the procedures employed
and the results achieved. I will submit a proper and full report to Company upon
completion of any and all studies or research projects undertaken on Company's
behalf, whether or not a given project has, in my opinion, resulted in an
Invention, and whether or not such Invention is patentable, copyrightable or
protectible as a trade secret.
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9. ASSIGNMENT OF INVENTIONS. I acknowledge and agree all Inventions that
I solely or jointly may conceive, develop, or reduce to practice or cause to be
conceived, developed or reduced to practice during the period of time I am in
the employ of Company and for a one-year period thereafter will be the sole and
exclusive property of Company, and I hereby irrevocably assign and agree to
assign exclusively to Company all such Inventions. I understand that my
obligation to assign Inventions hereunder may be limited as expressly stated on
EXHIBIT A to this Agreement.
10. LIST OF EXCLUDED INVENTIONS. I have attached to Exhibit A of this
Agreement a complete list of all Inventions belonging to me and made by me
prior to my employment with Company that I wish to have excluded from this
Agreement. If no such list is attached, I warrant and represent to Company
that there are no such Inventions. If in the course of my employment at
Company, I incorporate into any Company product, process, device, method, or
machine, or otherwise use in a Company product, an Invention owned by me or in
which I have an interest, Company is hereby granted and will have an exclusive
royalty-free, irrevocable license to make, have made, use, license, and sell
that Invention without restriction as to the extent of my ownership or interest.
11. WORKS MADE FOR HIRE. I acknowledge and agree that any creative or
copyrightable works prepared or originated by me for Company or done within
the scope of my employment with Company are "works made for hire" under the
Copyright Act, and that Company will be considered the author and owner of such
copyrightable works.
12. ASSIGNMENT OF OTHER RIGHTS. In addition to the foregoing, I hereby
irrevocably transfer and assign and agree to transfer and assign to Company;
(a) all worldwide patents, patent applications, copyrights, mask works, trade
secrets and other intellectual property rights in any Invention or works made
for hire; and (b) any and all Moral Rights that I may have in or with respect
to any Invention or works made for hire. I also hereby forever waive and agree
never to assert any and all Moral Rights I may have in or with respect to any
Invention or works made for hire, even after termination of my work on behalf
of Company.
13. ASSISTANCE. I agree to assist Company in every proper way to obtain
for Company and enforce patents, copyrights, mask work rights, trade secret
rights and other legal protections for Company's Inventions in any and all
countries. I will execute any documents that Company may reasonably request for
use in obtaining or enforcing such patents, copyrights, mask work rights, trade
secrets and other legal protections. My obligations under this paragraph will
continue beyond the termination of my employment with Company; provided,
however, Company will reimburse me for reasonable out-of-pocket expenses
actually spent by me at Company's request with respect to providing such
assistance after my employment. I hereby appoint the Company's Secretary or
designee as my attorney-in-fact to execute any documents on my behalf for the
purpose of providing any assistance anticipated under this Section 13.
14. COVENANT OF CUSTOMER NON-SOLICITATION. While employed by Company, and
for a period of 12 months immediately following the Termination Date, I will
not (either on my own behalf or on behalf of any other Person) directly or
indirectly, personally or through others solicit, divert, take away, or attempt
to solicit, divert or take away, any of Company's Customers or the business or
patronage of any such Customers.
15. COVENANT NOT TO SOLICIT EMPLOYEES. While employed by Company, and for
a period of 12 months immediately following the Termination Date, I will not
(either on my own behalf or on behalf of any other Person) directly or
indirectly, personally or through others employ, solicit or recruit for
employment, or advise or recommend to any other Person that they employ,
solicit or recruit for employment, any Person who is or was at any time during
the one-year period prior to the Termination Date an employee of Company.
16. COVENANT NOT TO COMPETE. While employed by Company, and for a period
of 12 months immediately following the Termination Date, I will not (either on
my own behalf or on behalf of any other Person) perform Services within the
Territory for any Person providing or offering goods or services identical to
or reasonably substitutable for Company's Business.
17. ACKNOWLEDGEMENT. I hereby acknowledge that (a) the foregoing covenants
in Sections 14, 15 and 16 are unique, substantial, and immeasurable value to
Company; (b) such covenants are reasonably limited in
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scope and/or geography to protect Company's legitimate business interests,
including its property, Confidential Information and Business relationships,
good will, economic advantage, and Customer relationships; (c) all of my
agreements, covenants and undertakings in this Agreement will not preclude me
from becoming gainfully employed following termination of my employment with
Company; and (d) it is intended and expected that the Services I provide to
Company are special and unique.
18. THIRD PARTY BENEFICIARIES. I understand and agree: (a) that
Micron Electronics, Inc., a Minnesota corporation, and its subsidiaries or
affiliates, are third party beneficiaries under this Agreement, and (b) that,
in addition to the Company, the covenants under Sections 14, 15 and 16 also are
intended for the benefit of Micron Electronics, Inc., and its subsidiaries or
affiliates, as third party beneficiaries under this Agreement.
19. EXTENSION OF COVENANTS. I understand and agree that, in the
event I violate any one or more of the foregoing covenants under Sections 14,
15 and 16, the running or duration of the term of each covenant so violated
will be automatically tolled or extended during the period(s) of any such
violation and the pendency of any litigation or other enforcement action
arising out of any such violation.
20. IRREPARABLE HARM; INJUNCTIVE RELIEF. I understand and agree that
a breach or threatened breach of my obligations under this Agreement will
result in great, irreparable and continuing harm to Company for which there is
no adequate remedy at law. I further understand and agree than in the event I
breach or threaten to breach this Agreement, Company will be entitled to seek,
from any court of competent jurisdiction, temporary, preliminary and permanent
injunctive relief to enforce the terms of this Agreement, in addition to any
and all monetary damages allowed by law, against me.
21. JUDICIAL MODIFICATION. The Parties have attempted by this
Agreement to limit the ability to compete only to the extent necessary to
protect Company's legitimate business interests and to protect Company from
unfair business practices and/or unfair competition, including without
limitation, unauthorized disclosure of Confidential Information,
misappropriation of trade secrets, loss of Customers or good will,
interference, and the raiding or loss of Company employees. The Parties
recognize, however, that reasonable persons may differ in making such a
determination under the circumstances as may be presented from time-to-time.
Consequently, the Parties agree that, if any covenant under this Agreement is
in any way adjudged by a court of competent jurisdiction to be invalid or
unenforceable, as to scope, territory or otherwise, a court or other trier of
fact may modify and enforce the covenant to the extent that it believes to be
reasonable and fair under the circumstances existing at that time, and as
necessary to protect Company's legitimate business interests.
22. ATTORNEY FEES. If court proceedings are required to enforce any
provision or to remedy any breach of this Agreement, the prevailing party on
such claim will be entitled to an award of reasonable expenses from the
nonprevailing party (including, without limitation, reasonable attorneys' fees,
litigation costs, court costs, experts' fees and amounts paid in investigation,
defense or settlement of any claims, and whether or not such expenses are
incurred at the trial, appellate or administrative levels, or upon any other
petition for review).
23. MISCELLANEOUS.
23.1 SURVIVAL. I understand that this Agreement will be
effective as of the Effective Date, and that the terms of this Agreement and my
obligations hereunder will remain in full force and effect not only during my
employment with Company, but also after the termination of such employment for
any reason (including, but not limited to, all of the post-employment
obligations stated in Sections 6 through 9, and 13 through 16).
23.2 AMENDMENT. This Agreement cannot be amended, except by
a written agreement or instrument executed by both me and an officer of Company
that specifically references this Agreement.
23.3 WAIVER. Failure of Company to exercise or otherwise act
with respect to any rights under this Agreement will not constitute or be
construed as a waiver of any breach, nor prevent Company from thereafter
enforcing strict compliance with any and all terms of this Agreement.
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23.4 SEVERABILITY. If any part of this Agreement is adjudicated to be
invalid or unenforceable, then such part will be deemed deleted from this
Agreement or amended, as the case may be, in order to render the remainder of
this Agreement valid and enforceable.
23.5 GOVERNING LAW. The validity, construction and enforceability of
this Agreement shall be governed in all respects by the laws of the State of
Georgia, without regard to application of its conflict of laws rules.
23.6 CONSENT TO JURISDICTION AND VENUE. I hereby irrevocably consent
and submit to the exclusive jurisdiction of the state courts of the State of
Georgia and the Federal Courts in the Northern District of Georgia with respect
to any actions or causes of action arising under this Agreement, and further
agree that Atlanta, Georgia shall be the exclusive venue of any actions or
causes of action arising hereunder (unless injunctive relief is sought, and, in
Company's judgment, may not be effective unless obtained in some other venue).
23.7 ASSIGNMENT. Company may assign any of its rights and obligations
under this Agreement. No other party to this Agreement may assign, whether
voluntarily or by operation of law, any rights and obligations under this
Agreement, except with the prior written consent of Company.
23.8 AGREEMENT BINDING. This Agreement will be binding upon my
signature, and will inure to the benefit of Company, Company's successors and
assigns, and me and my heirs, executors, administrators, personal
representatives, and other legal representatives. I specifically understand and
agree that the covenants under Sections 14, 15 and 16 shall be enforceable by
Company and Company's assigns.
23.9 TITLES AND HEADINGS. The titles, captions and headings of this
Agreement are included for ease of reference only and will be disregarded in
interpreting or construing this Agreement. Unless otherwise specifically
state, all references herein to "sections" and "exhibits" will mean "sections"
and "exhibits" to this Agreement.
23.10 FURTHER ASSURANCES. The parties agree to execute such further
documents and instruments and to take such further actions as may be reasonably
necessary to carry out the purposes and intent of this Agreement.
23.11 ENTIRE AGREEMENT. This Agreement contains the entire agreement
and understanding of the parties concerning the subject matter of this
Agreement, and supersedes all prior or contemporaneous understandings,
agreements or representations, whether oral or written, between or among the
parties, except any other confidentiality agreement entered into with Company
prior to my employment.
HAVING READ AND FULLY UNDERSTOOD THIS AGREEMENT, I have signed my name as
of the date shown below.
EMPLOYEE: COMPANY:
/s/ XXXXX X. XXXXXXX /s/ XXXXXX X. XXXXX
---------------------------- ----------------------------
Signature Signature
Date: 10/4/01 Date: 10/5/01
---------------------- ----------------------
Print Name: Xxxxx X. Xxxxxxx Print Name: Xxxxxx X. Xxxxx
----------------- -----------------
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EXHIBIT A
EXCLUDED INVENTIONS MUST BE SET OUT ON A
LEGIBLE LIST ATTACHED TO THIS EXHIBIT
IS A LIST ATTACHED? (PLEASE XXXX): YES X NO
----- -----
NOTE: If a list is attached, it must specifically show and describe all
unpatented or uncopyrighted Inventions, discoveries, concepts, ideas,
improvements, and developments, whether patentable or unpatentable, copyrighted
or uncopyrightable, made or conceived prior to the date of the undersigned
employee's employment with Company, which are intended or desired by employee
to belong to employee and to be excluded from the Confidentiality, Invention
Assignment, and Non-Competition Agreement (the "AGREEMENT") with Company.
IF NO SUCH LIST IS ATTACHED, THAT MEANS NO INVENTIONS ARE INTENDED OR DESIRED
BY THE UNDERSIGNED EMPLOYEE TO BE EXCLUDED.
NOTICE OF INVENTION ASSIGNMENT LIMITATIONS
The Assignment of Inventions under the Agreement does not apply to any Invention
with respect to which the undersigned employee can clearly prove each of the
following: (a) it was developed entirely and exclusively on the employee's own
time; (b) no equipment, supplies, facility, Confidential Information (as
defined in the Agreement), or trade secrets of Company was used in its
development; (c) it does not relate directly to the Business of Company or to
the actual or demonstrably anticipated research and development of Company; and
(d) it does not result, directly or indirectly, from any work performed by the
employee for Company.
EMPLOYEE:
/s/ Xxxxx X. Xxxxxxx Date: 10/4/01
--------------------------------- ----------------------------------
Signature
Xxxxx X. Xxxxxxx
---------------------------------
Name (Please print)
COMPANY WITNESS:
By: Xxxxxx X. Xxxxx Date: 10/5/01
----------------------------- ----------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------
Title: VP, HR Ops.
--------------------------
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EXHIBIT B
LIST OF SERVICES SET OUT
FOR PURPOSES OF PARTIES'
CONFIDENTIALITY, INVENTION
ASSIGNMENT, AND NON-COMPETITION AGREEMENT
The following is a list providing a description of the types of Services
that Company and the undersigned employee presently anticipate will be provided
to Company by such employee during his/her employment with Company (if
additional space is required, please attach additional papers as necessary to
this Exhibit B):
1. Manage the Company's legal department and provide and oversee the provision
of legal services to the Company, including the management and supervision of
outside counsel and the outside counsel budget.
2. Advise the Company's executive staff on legal matters.
3. Serve as Corporate Secretary and oversee preparation and management of
corporate documents.
4. Participate as an executive and with other executives to create and
implement corporate strategy, goals, and objectives.
This list may be amended, supplemented or updated by the Parties as
appropriate, if the undersigned employee's Services change during the course of
his/her employment with Company. Any amendments, supplements or updates to this
list will be made in writing, signed by the undersigned employee and Company.
All capitalized terms on this Exhibit B shall have the meaning set forth in the
Parties' Confidentiality, Invention Assignment, and Non-Competition Agreement.
EMPLOYEE:
/s/ Xxxxx X. Xxxxxxx Date: 10/4/01
--------------------------- ---------------------
Signature
Xxxxx X. Xxxxxxx
---------------------------
Name (Please print)
COMPANY WITNESS:
By: /s/ Xxxxxx X. Xxxxx Date: 10/5/01
------------------------ ---------------------
Name: Xxxxxx X. Xxxxx
----------------------
Title: VP, HR Ops
---------------------
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