EXHIBIT 10.11
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), made and entered into,
effective as of 1st day of May, 1998, by and between Xxxxxxx X. Xxxxxxxx
("Employee") and Interactive Intelligence, Inc. ("Company"), an Indiana
corporation.
WITNESSETH:
WHEREAS, the Employee possesses certain skills which the Company wishes
to utilize in its business, and the Employee wishes to provide certain
services to the Company upon the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
promises and agreements contained herein and other good and valuable
consideration, the receipt, legal adequacy and sufficiency of which are
hereby acknowledged, the parties agree as follows:
SECTION 1. EMPLOYMENT. The Company engages the Employee to serve the
Company, and the Employee agrees to serve the Company as an employee in such
capacities as the Board of Directors of the Company may, from time to time,
determine, upon the terms and conditions hereinafter set forth.
SECTION 2. TERM; RENEWAL. The term of the Employee's employment under
this Agreement shall be for an initial term commencing and ending on the
dates set forth on the Addendum attached hereto and incorporated herein by
reference ("Addendum"), which term shall automatically renew for successive
one (1) year terms, on the same terms and conditions set forth herein unless
either the Company or the Employee gives written notice to the other, at
least thirty (30) days prior to the expiration of the initial term or any
renewal term, that the term will not renew.
SECTION 3. TITLE, SERVICES AND DUTIES.
(a) During the term of employment hereunder, the Employee shall serve
in the capacities described on the Addendum and shall perform the duties and
responsibilities described on the Addendum or as are normally associated with
such a position in the Company's industry and as may be delegated to the
Employee by the President or the Company's Board of Directors.
(b) During such employment, the Employee shall devote substantially all
of the Employee's business time, attention, energy and skill to the business
of the Company, and shall perform such services in a faithful, competent and
diligent manner at the direction of the President and of the Company's Board
of Directors.
(c) During the Employee's employment, the Company shall provide the
Employee with such office facilities and support services as the Company
determines in its business judgment to be appropriate for the Employee to
perform the Employee's duties and responsibilities hereunder.
1
(d) The Employee shall comply with all policies and procedures adopted
by the Company from time to time, including without limitation, policies
regarding reimbursement for business expenses incurred on behalf of the
Company, and compliance with applicable laws.
SECTION 4. COMPENSATION AS EMPLOYEE. At all times during the initial
term or any renewal term of this Agreement, the Company shall pay the
Employee an annual salary in the amount set forth in the Addendum, payable at
the usual payroll payment dates of the Company, and any other options or
benefits set forth in the Addendum. All amounts paid hereunder by Company to
the Employee shall be subject to all applicable local, state and federal
withholding taxes. The Company may increase or decrease the salary set forth
herein from time to time, in its sole discretion, but any decrease may only
be made upon fifteen (15) days prior notice.
SECTION 5. TERMINATION AND SEVERANCE PAYMENTS
(a) In the event that the employment of the Employee is terminated for
cause or in the event that the Employee resigns his/her employment with the
Company, the Employee shall be paid any salary and any other benefits which
have then accrued and to which the Employee is entitled to at such time.
However, in such event, the Employee shall not be entitled to any severance
compensation as set forth in subparagraph (b) below.
(b) In the event that the employment of the Employee is terminated by
the Company for any reason other than for cause, in addition to receiving all
accrued salary and benefits to which the Employee is entitled to at such
time, the Company further agrees to pay the Employee as severance pay an
amount equal to the Employee's salary as in effect at such time for an
additional one (1) month from the date of termination, with payments to be
made on the Company's usual payroll payment dates.
(c) All amounts paid under Subsections (a) or (b) hereof to the
Employee shall be subject to all applicable local, state or federal
withholding taxes, if any.
SECTION 6. EMPLOYEE BENEFITS.
(a) The Employee shall be limited each calendar year to a vacation
benefit for the amount of time shown in the Addendum (prorated from the date
of commencement to the end of that applicable calendar year). All vacation
benefits must be fully utilized in the calendar year in which accrued,
provided that (i) no vacation may be taken during the first six (6) months of
the initial term hereof without the prior written consent of the Company,
(ii) the Employee must comply with procedures adopted from time to time by
the Company with respect to the scheduling of vacations, and (iii) if because
of the Company's requirements, the Company does not approve the Employee's
requested vacation schedule and thus prevents the Employee from fully
utilizing all of the Employee's vacation in the year earned, the Company and
the Employee shall in good faith make arrangements for either the carryover
of such unused vacation to the next calendar year or such other arrangements
as are mutually satisfactory.
(b) During the term of the Employee's employment hereunder, the
Employee shall be entitled to participate, upon the same terms and conditions
applicable to employees generally in any life,
2
health, hospitalization or any other insurance program, or any other pension
or benefit plan which the Company may from time to time provide or make
available to the Company's employees and for which the Employee is eligible
and qualified; provided that if the inclusion of the Employee under any such
program or plan causes or would cause either such program or plan to be
terminated or the Company to incur a materially disproportionate additional
cost, the Company may elect to provide benefits of a substantially similar
nature which avoids such adverse effects.
SECTION 7. COVENANT NOT TO COMPETE.
(a) During the Employee's service hereunder and for a period of
eighteen (18) months thereafter, regardless of the reason or method of
termination, the Employee will not, directly or indirectly, for the
Employee's own benefit or the benefit of any other person or entity:
(i) solicit in any manner, seek to obtain, or service the
business of any customer of the Company, other than for the Company;
(ii) become an owner of any business, if such business competes
with the Company;
(iii) become employed by or serve as an agent, independent
contractor or representative of any business which competes with the Company;
(iv) solicit the employment of or hire any employee of the
Company, or encourage any employee to terminate his or her employment with
the Company; or
(v) prepare in any manner to compete with the Company.
(b) For purposes of this Agreement, a "customer" shall be deemed to be
any person, business, partnership, proprietorship, firm, organization or
corporation which has done business with the Company or which has been
solicited or serviced in any manner, directly or indirectly, by the Company
within eighteen (18) months prior to the date of the termination of the
Employee, and the phrase "service the business of any customer" means the
development, modification, enhancement or improvement of any product or
service offered by the Company or which is reasonably related to the products
or services offered by the Company. The Employee hereby acknowledges that, by
virtue of the Employee's position and access to information, the Employee
will have advantageous familiarity and personal contacts with the Company's
customers, wherever located, and that the restrictions contemplated hereby
are reasonable for the protection of the Company's goodwill and customer
base, and the Company's efforts in the development of such customers.
(c) If the Employee does not comply with the provisions of this Section 7,
the eighteen (18) month period of non-competition provided herein shall be
tolled and deemed not to run during any period(s) of noncompliance, the
intention of the parties being to provide eighteen (18) full months of
non-competition by the Employee after the termination or expiration of this
Agreement.
SECTION 8. COVENANT NOT TO DISCLOSE CONFIDENTIAL INFORMATION.
(a) The term "Confidential Information" as used herein shall mean any
and all software programs, customer lists, trade secrets and information,
know-how, skills, knowledge, ideas, knowledge of customer's commercial
requirements, pricing methods, sales and marketing techniques, dealer
relationships and agreements, financial information, intellectual property,
codes, algorithms, research, development, research and development programs,
processes, documentation, inventions, or devices used in or pertaining to the
Company's business (i) which relate in any way
3
to the Company's business, products or processes; or (ii) which are
discovered, conceived, developed or reduced to practice by the Employee,
either alone or with others either (x) during the term of this Agreement; or
(y) at the Company's expense; or (z) on the Company's premises or with the
Company's equipment.
(b) During the course of his/her services hereunder, the Employee may
become knowledgeable about, or become in possession of, Confidential
Information. If such Confidential Information were to be divulged or become
known to any competitor of the Company or to any other person outside the
employ of the Company, or if the Employee were to consent to be employed by
any competitor of the Company or to engage in competition with the Company,
the Company would be harmed. In addition, the Employee has or may develop
relationships with the Company's customers which could be used to solicit the
business of such customers away from the Company. The parties have entered
into this Agreement to guard against such potential harm.
(c) The Employee shall not, directly or indirectly, use any
Confidential Information for any purpose other than the benefit of the
Company or communicate, deliver, exhibit or provide any Confidential
Information to any person, firm, partnership, corporation, organization or
entity, except other employees or agents of the Company as required in the
normal course of the Employee's service as an employee or except as the
President or any authorized officer of the Company may direct in writing.
The covenant contained in this Section 8 shall be binding upon the Employee
during the term of this Agreement and following the termination hereof, for
the shorter of the period until either (i) until such Confidential
Information becomes obsolete; or (ii) until such Confidential Information
becomes generally known in the Company's trade or industry by means other
than a breach of this covenant.
(d) The Employee agrees that all Confidential Information and all
records, documents and materials relating to all of such Confidential
Information, shall be and remain the sole and exclusive property of the
Company.
SECTION 9. REMEDIES.
(a) The Employee agrees that the Company will suffer irreparable damage
and injury and will not have an adequate remedy at law in the event of any
breach by the Employee of any provision of Sections 7 or 8 hereof.
Accordingly, in the event of a breach or of a threatened or attempted breach
by the Employee of Sections 7 or 8 hereof, in addition to all other remedies
to which the Company is entitled under law, in equity, or otherwise, the
Company shall be entitled to a temporary restraining order and permanent
injunction (without the necessity of showing any actual damage) or a decree
of specific performance of the provisions of Sections 7 or 8 hereof and no
bond or other security shall be required in that connection. The Company
shall be entitled to recover from the Employee, reasonable attorneys' fees
and expenses incurred in any action wherein the Company successfully enforces
the provisions of Sections 7 or 8 hereof against the breach or threatened
breach of those provisions by the Employee.
(b) The Employee acknowledges and agrees that in the event of
termination of this Agreement for any reason whatsoever, the Employee can
obtain other engagements or employment of a kind and nature similar to that
contemplated herein and that the issuance of an injunction to
4
enforce the provisions of Sections 7 or 8 hereof will not prevent the
Employee from earning a livelihood.
(c) The covenants on the part of the Employee contained in Sections 7
or 8 hereof are essential terms and conditions to the Company entering into
this Agreement, and shall be construed as independent of any other provision
in this Agreement. The existence of any claim or cause of action the
Employee has against the Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company
of these covenants.
SECTION 10. INVENTIONS.
(a) The Employee shall disclose fully to the Company all inventions (as
defined below) conceived or discovered by the Employee, whether solely or
jointly with others during the term of this Agreement. Such inventions shall
belong solely to the Company and shall not belong to the Employee. During
the term of this Agreement, the Employee shall assign to the Company,
exclusively and free from any royalty obligation or any other legal or
equitable title or right of the Employee, all such inventions referred to
above and all patents, trademarks, copyrights, and maskworks, and any and all
applications and rights pertaining thereto on a worldwide basis. The
Employee shall assist the Company, during and subsequent to the term hereof,
in every proper way, but without any further compensation or additional
consideration, to transfer and assign such inventions to and for the
Company's benefit and enjoyment and to cooperate as may be reasonably
requested to perfect the Company's ownership therein and, if requested by the
Company, to prosecute or direct in prosecuting any application for or
registration with respect to any patent or other applicable intellectual
property right, including, but not in limitation thereof, the execution and
delivery of applications for the registration of one or more intellectual
property rights and assignments of the same as may be deemed necessary or
desirable by the Company in any office selected by the Company. The judgment
of the Company with respect to the registrability of any particular item of
intellectual property shall be final and conclusive as between the Employee
and the Company.
(b) Any improvements made upon such inventions by the Employee
subsequent to the term hereof shall be presumed to have been developed during
the term hereof and by and for the benefit of the Company and accordingly
shall be the property of the Company.
(c) The Employee agrees to execute such other standard forms relating
to the invention or development of inventions and other intellectual
properties as the Company may require of its consultants and employees
generally.
(d) Prior inventions of the Employee, if any, as listed on the
Addendum, are excluded from the scope of this Agreement.
(e) For purposes of this Agreement, "inventions" includes all
inventions, creations, developments, software programs, algorithms, routines,
patterns, components, compilations, devices, or improvements of any kind or
nature, whether or not trade secret, patented, patentable, copyrighted or
copyrightable, which the Employee had made or conceived or developed or may
make, conceive or develop, either solely or jointly with others, while in the
employ of the Company or with the use of the Company's time, materials,
equipment or facilities or relating in any way to the Company's
5
actual, anticipated, or subsequently arising business, products, services or
activities, or arising out of or suggested by any task assigned to be
performed by the Employee, solely or jointly with others, for or on behalf of
the Company.
SECTION 11. SURRENDER OF RECORDS. Upon termination of the Employee's
employment for any reason, the Employee shall immediately surrender to the
Company any and all records, notes, documents, forms, manuals, photographs,
instructions, lists, drawings, blueprints, programs, diagrams or other
written, printed or electronic material (including any and all copies made at
any time whatsoever) in his or her possession or control which pertain to the
business of the Company.
SECTION 12. TERMINATION. During the initial term or any renewal term,
the employment of the Employee may be terminated at will for any reason by
either the Company or the Employee, with at least ten (10) days prior written
notice by the terminating party delivered to the other setting forth whether
such termination was for cause or without cause to determine whether the
Employee is entitled to any severance payment pursuant to Section 5 above.
Notwithstanding the foregoing, this Agreement shall be terminated immediately,
without any notice or waiting period, upon the Employee's death. This
Agreement may be terminated at any time by mutual agreement of the parties.
SECTION 13. PARTIES BOUND. All provisions of this Agreement shall
inure to the benefit of and be binding upon the parties hereto, their heirs,
personal representatives, successors and assigns.
SECTION 14. EFFECT AND MODIFICATION. This Agreement comprises the
entire agreement between the parties with respect to the subject matter
hereof and supersedes all other earlier agreements relating to the subject
matter hereof. No statement or promise, except as herein set forth, has been
made with respect to the subject matter of this Agreement. No modification
or amendment hereof shall be effective unless in writing and signed by the
Employee and an officer of the Company (other than the Employee).
SECTION 15. NON-WAIVER. The Company's or the Employee's failure or
refusal to enforce all or any part of, or the Company's or the Employee's
waiver of any breach of this Agreement, shall not be a waiver of the
Company's or the Employee's continuing or subsequent rights under this
Agreement, nor shall such failure or refusal or waiver have any affect on the
subsequent enforceability of this Agreement.
SECTION 16. NON-ASSIGNABILITY. This Agreement contemplates that the
Employee will personally provide the services described herein, and
accordingly, the Employee may not assign the Employee's rights or obligations
hereunder, whether by operation of law or otherwise, in whole or in part,
without the prior written consent of the Company.
SECTION 17. NOTICE. Any notice, request, instruction or other document
to be given hereunder to any party shall be in writing and delivered by hand,
telegram, registered or certified United States mail return receipt
requested, or other form of receipted delivery, with all expenses of delivery
prepaid, as follows:
If to the Employee: To the most recent address the Company has on
its records.
6
Employees most recent address (please fill in):
0-0-00-000 Xxxxx Xxxxx
Xxxxxx - Xx
Xxxxx 000 Xxxxx
If to the Company: Interactive Intelligence, Inc.
0000 XxXxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, M.D., President
Any notice to the employee shall also be sufficient, if sent to the most
recent address of the employee on the Company's books and records.
SECTION 18. GOVERNING LAW. This Agreement is being delivered in and
shall be governed by the laws of the State of Indiana. All actions or
proceedings shall be tried in the state or federal courts whose venue
includes Xxxxxx County or Xxxxxxxx County, Indiana.
SECTION 19. PRIOR AGREEMENTS.
(a) The Employee represents and warrants to the Company that the
Employee is not a party to or otherwise bound by any agreement that would
restrict in any way the performance by the Employee of the Employee's duties,
services and obligations under this Agreement, that the Employee has
disclosed to the Company all employment type agreements to which the Employee
has been bound, including without limitation employment agreements,
consulting agreements, non-compete agreements or covenants, confidentiality
or non-disclosure agreements or covenants, and intellectual property
assignment agreements, and that the Company will not have any liability to
any third party arising out of the Employee entering into this Agreement or
performing hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
/s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Printed: Xxxxxxx X. Xxxxxxxx
INTERACTIVE INTELLIGENCE, INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx, M.D., President
7
ADDENDUM TO EMPLOYMENT AGREEMENT
BETWEEN INTERACTIVE INTELLIGENCE, INC.
AND
XXXXXXX X. XXXXXXXX, DATED MAY 1, 1998
This Addendum relates to the Employment Agreement between Interactive
Intelligence, Inc. and, Xxxxxxx X. Xxxxxxxx, dated May 1, 1998. This
Addendum is incorporated therein by reference and shall be an integral part
of the Employment Agreement.
1. Name of Employee: Xxxxxxx X. Xxxxxxxx
2. Initial Term: Two (2) Years
3. Date of Commencement: May 1, 1998
4. Date Initial Term Ends: April 30, 2000
5. Title: Vice President - Asia Pacific
6. Job Description: Overall responsibilities for this geographic
region, including; channel development, sales,
fulfillment, client services, localization,
P&L, etc.
7. Initial Compensation: $150,000 (one hundred fifty thousand dollars and
no cents) salary per year + performance and bonus
program and ex-patriot subsidy. Refer to offer
letter dated April 14, 1998.*
8. Stock Options:
- Plan Incentive Stock Option Plan ("Qualified")
- Number 50,000 (fifty thousand) shares
- Exercise Price $4.00 (four dollars and no cents) per share
9. Amount of Vacation: Two (2) weeks per calendar year
10. Other Benefits: Medical and Dental Insurance, 401k Plan,
Long Term Disability, Cafeteria 125 Plan
11. Prior Inventions: ________________________________________
Date: May 1, 1998 XXX
--------
Initials Initials
*Board of Advisors, Xxxxxx & Associates (Venture Fund)- No Pay DTS
Board of Advisors, Emediate (SI Company)- No pay
(#31613 and 40525)
8
