EXHIBIT 10.19
AGREEMENT
This Agreement is entered into as of February 10, 2000 by and between
XxxxXxxxx.xxx, Inc., a Delaware corporation, Xxxxxx Xxxx, and each of the
undersigned individuals.
WHEREAS, at the time of the Company's initial public offering in December
1998, the parties to this Agreement entered into a Indemnification Agreement
dated as of December 11, 1998, whereby Xx. Xxxx, as the Company's majority
stockholder, agreed to provide 1,000,000 shares (before adjustment for stock
splits after such date) of his Common Stock into an escrow fund to provide
indemnification to the Company and the Company's directors in connection with
certain potential claims against the Company arising from activities of the
Company prior to the initial public offering, and
WHEREAS, the purpose of that Agreement was to enable the Company to
complete its initial public offering and assure that, should any of such claims
related to the Company's business prior to the public offering arise, the
Company would have an escrow fund available which would provide further
assurances to the underwriters and the public investors in connection with the
Company's initial public offering, and
WHEREAS, the Company completed its initial public offering and, under the
leadership of Xx. Xxxx, has substantially increased its business and its market
capitalization, and
WHEREAS, the Company, Xx. Xxxx and the undersigned individuals wish to
enter into this Agreement terminating the Indemnification Agreement and
providing that Xx. Xxxx will enter into a two (2) year non-competition agreement
with the Company.
NOW THEREFORE, in consideration of the mutual agreements and covenants
herein contained, it is agreed as follows:
1. Effective as of the date of this Agreement, the Indemnification
Agreement shall be, and is, terminated and of no further force and
effect.
2. Xx. Xxxx, in consideration of the termination of the Indemnification
Agreement and for other good and valuable consideration, hereby
concurrently with this Agreement and as a condition thereto enters into
the attached XxxxXxxxx.xxx, Inc. Employee-Non-Disclosure and Invention
Release and Non-Competition Agreement which shall provide for a non-
competition term of the duration of Xx. Xxxx'x employment with the
Company and for a period of two (2) years thereafter.
IN WITNESS WHEREOF, the undersigned have entered into this Agreement as of
the date above written.
XXXXXXXXX.XXX, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------
/s/ Xxxxxx Xxxx
---------------------------
Xxxxxx Xxxx
/s/ Xxxx X. Xxxxxxxxxx XX
---------------------------
Xxxx X. Xxxxxxxxxx XX
/s/ Xxxxx X.X. Xxxxxx
---------------------------
Xxxxx X.X. Xxxxxx
/s/ Xxxxx X. House
---------------------------
Xxxxx X. House
/s/ Xxxx List
----------------------------
Xxxx List
/s/ Xxxxx X. Xxxxx III
---------------------------
Xxxxx X. Xxxxx III
/s/ Xxxx Xxxxx
----------------------------
Xxxx Xxxxx
/s/ Bernee X. X. Xxxxx
----------------------------
Bernee X. X. Xxxxx
-2-
XxxxXxxxx.xxx Employee Non-Disclosure, Invention Release and Non-competition
Agreement
1. As an employee of XxxxXxxxx.xxx, a Delaware Corporation (XxxxXxxxx.xxx),
and in consideration of the compensation now and hereafter paid to me and the
-------
termination of my Indemnification with XxxxXxxxx.xxx dated December 11, 1998, I
-------------------------------------------------------------------------------
hereby agree to the provisions in this Agreement, and I will devote my best
-----------------------------------------------------
efforts to furthering the best interest of XxxxXxxxx.xxx. During my employment
by XxxxXxxxx.xxx, I will not engage in any business activities or ventures
outside of the business activities of XxxxXxxxx.xxx without the express prior
written consent of XxxxXxxxx.xxx. Also, during my employment, I will not engage
in any activity or investment (other than an investment of less than .01% of the
shares of a company traded on registered stock exchange), that (a) conflicts
with XxxxXxxxx.xxx's business interest, including without limitation, any
business activity not contemplated by this agreement, (b) occupies my attention
so as to interfere with the proper and efficient performance of my duties at
XxxxXxxxx.xxx, or (c) interferes with the independent exercise of my judgment in
XxxxXxxxx.xxx's best interest, except for investments that are approved by
-------------------------------------------
XxxxXxxxx.xxx's Special Projects Committee. As used herein, XxxxXxxxx.xxx's
------------------------------------------
"business" means the development, marketing and support of software for
Internet.
2. At all times during my employment and thereafter I will not disclose to
anyone outside XxxxXxxxx.xxx nor use for any purpose other than my work for
XxxxXxxxx.xxx (a) any confidential or proprietary technical, financial,
marketing or distribution of other technical or business information or trade
secrets of XxxxXxxxx.xxx, including without limitation, concepts, techniques,
processes, methods, systems, designs, cost data, computer programs, formulas,
development or experimental work, work in progress, customer and suppliers, (b)
any information XxxxXxxxx.xxx has received from others which XxxxXxxxx.xxx is
obligated to treat as confidential or proprietary or (c) any confidential or
proprietary information which is circulated within XxxxXxxxx.xxx via its
internal email system or otherwise. I will also not disclose any confidential
information inside XxxxXxxxx.xxx except on "need to know" basis. If I have any
questions as to what comprises such confidential proprietary information or
trade secrets, or to whom, if anyone, inside XxxxXxxxx.xxx, it may be disclosed,
I will consult my manager at XxxxXxxxx.xxx
3. I will make prompt and full disclosure to XxxxXxxxx.xxx, will hold in trust
for the sole benefit of XxxxXxxxx.xxx, and will assign exclusively to
XxxxXxxxx.xxx all my rights, title and interest in and to any and all
inventions, discoveries, designs, developments, improvements, copyrightable
material, and trade secrets (collectively herein "inventions") that I, solely or
jointly, may conceive, develop, or reduce to practice during the period of time
I am in the employ of XxxxXxxxx.xxx. I hereby waive and quitclaim to
XxxxXxxxx.xxx any and all claims of any nature whatsoever that I now or
hereafter may have for infringement of any patent resulting from any patent
applications for any inventions so assigned to XxxxXxxxx.xxx.
My obligation to assign shall not apply to any Invention about which I can prove
that:
(a) It was developed entirely on my own time; and
(b) No equipment, supplies, facility, or trade secret information of
XxxxXxxxx.xxx was used in it development; and
(c) It does not relate 1) directly to the business of XxxxXxxxx.xxx or 2)
to the actual or demonstrably anticipated research or development of
XxxxXxxxx.xxx; and
(d) It does not result from any work performed by me for XxxxXxxxx.xxx
I will assign to XxxxXxxxx.xxx or its designee all my rights, title and interest
in and to any and all inventions full title to which may be required to be in
the United States by any contract between XxxxXxxxx.xxx and the United States or
any of its agencies.
4. I have attached hereto a list describing all inventions belonging to me and
made by me prior to my employment at XxxxXxxxx.xxx that I wish to have excluded
from this agreement. If no such list is attached, I represent that there are no
such inventions. If in the course of my employment at XxxxXxxxx.xxx, I use in
or incorporate into an XxxxXxxxx.xxx product, process, or machine, an invention
owned by me or in which I have an interest. XxxxXxxxx.xxx is hereby granted and
shall have an exclusive royalty-free, irrevocable, worldwide license to make,
have made, use and sell that invention without restriction as to the extent of
my ownership or interest.
5. I will execute any proper oath or verify and proper document in connection
with carrying out the terms of this agreement. If, because of my mental or
physical incapacity or for any other reason whatsoever, XxxxXxxxx.xxx is unable
to secure my signature to apply for or to pursue any application for any United
States or foreign patent or copyright covering Inventions assigned to
XxxxXxxxx.xxx as stated above, I hereby irrevocably designate and appoint
XxxxXxxxx.xxx and its duly authorized officers and agents as my agent and
attorney in fact, to act for me and in my behalf and stead to execute and file
any such applications and to all other lawfully permitted acts to further the
prosecution and issuance of U.S. and foreign patents and copyrights thereon with
the same legal force and effect as if executed by me. I will testify at
XxxxXxxxx.xxx's request and expense in any interference, litigation, or other
legal proceeding that may arise during or after my employment.
6. I recognize that XxxxXxxxx.xxx has received and will receive confidential and
proprietary information from third parties subject to a duty on XxxxXxxxx.xxx's
part to maintain the confidentiality of such information and to use it only for
certain limited purposes. During the term of my employment and thereafter I owe
XxxxXxxxx.xxx and such third parties a duty not to disclose such confidential or
proprietary information to anyone except as necessary in carrying out my work
for XxxxXxxxx.xxx and consistent with XxxxXxxxx.xxx's agreement with such third
party. I will not use such information for the benefit of anyone other than
XxxxXxxxx.xxx or such third party, or in any manner inconsistent with any
agreement between XxxxXxxxx.xxx and such third party of which I am made aware.
7. During my employment at XxxxXxxxx.xxx I will not improperly or disclose any
confidential or proprietary information or trade secrets of my former or current
employers, principals, partners, co-ventures, clients customers or suppliers or
the vendors or customers of such persons or entities or their vendors or
customers unless such persons or entities have given verbal consent. I will not
violate any non-disclosure or proprietary rights agreement I might have signed
in connection with any such person or entity.
8. I acknowledge that my employment will be of indefinite duration and that
either XxxxXxxxx.xxx or I will be free to terminate this employment relationship
at will at any time with or without cause. I also acknowledge that any
representation to the contrary are unauthorized and void, unless contained in a
formal written employment contract signed by an officer of XxxxXxxxx.xxx. I
further acknowledge that the terms and conditions of this agreement shall
survive termination of my employment.
9. At the time I leave the employ of XxxxXxxxx.xxx, I will return to
XxxxXxxxx.xxx all papers, drawings, notes, memoranda, manuals, specifications,
designs, devices, documents, diskettes and tapes, and any other material on any
media containing or disclosing any confidential or proprietary technical or
business information. I will also return any keys, pass cards, identification
cards or any other property belonging to XxxxXxxxx.xxx.
10. For a period of two years after termination of my employment for any reason,
--- --------------
I will not accept employment or engage in any activities directly or indirectly
competitive with the business (as defined in the first paragraph) or with the
actual or demonstrably anticipated research or development of XxxxXxxxx.xxx as
of my termination date.
11. While employed at XxxxXxxxx.xxx and for a period of two years from the
---
termination of my employment for any reason I will not induce or attempt to
--------------
influence directly or indirectly any employee of XxxxXxxxx.xxx to terminate
his/her employment with XxxxXxxxx.xxx or to work for me or any other person or
entity.
12. I acknowledge that any violation of this agreement by me will cause
irreparable injury to XxxxXxxxx.xxx, and XxxxXxxxx.xxx shall be entitled to
extraordinary relief in court, including, but not
limited to, temporary restraining orders, preliminary injunctions, and permanent
injunctions, without the necessity of posting bond or security.
13. If court proceedings are required to enforce any provision or to remedy any
breach of this Agreement, the prevailing party shall be entitled to an award of
reasonable and necessary expenses of litigation, including reasonable attorney
fees.
14. I agree that this agreement shall be governed for all purposes by the laws
of the state of Washington as such laws applies to contracts to be performed
within Washington by residents of Washington and that venue for any action
arising out of this Agreement shall be property laid in King County, Washington
or in the Federal District Court of the Western District of Washington. If any
provision of this Agreement shall be declared excessively broad, it shall be
construed so as to afford XxxxXxxxx.xxx the maximum protection permissible by
law. If any provision of this Agreement is void or so declared, such provision
shall be severed from this Agreement, which shall otherwise remain in full force
and effect. This Agreement sets forth the entire Agreement of the parties as to
employment at XxxxXxxxx.xxx and any representations promises, or conditions in
connection therewith not in writing and signed by both parties shall not be
binding upon either party.
HAVING READ AND FULLY UNDERSTOOD THIS AGREEMENT, I have signed my name this
date.
/s/ Xxxxxx Xxxx February 10, 2000
---------------------------- -----------------
Xxxxxx Xxxx Date
Inventions listed on attached: Yes No
--- ---
Xxxxx X. Xxxxx
----------------------------
XxxxXxxxx.xxx Witness
