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 Xxxxxxx Xxxxx, an
individual residing in Austin, Texas ("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 of
Operations as of January 13, 2003, 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 of Operations, and Executive agrees to serve in such
capacity 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 December 18, 2002 and attached hereto as EXHIBIT 1.
The Base Salary 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.
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
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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
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Nonperformance Due to Disability as defined below); (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").
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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 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.
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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.
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
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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 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:
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If to Company: Interland, Inc.
000 Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
If to Executive: Xxxxxxx X. Xxxxx
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
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/ Xxxxxxx Xxxxx
---------------------------- -------------------------------
Name: Xxx Xxxxxxxx Name: Xxxxxxx Xxxxx
----------------------------
Title: SVP - Human Resources Date: 1/13/03
---------------------------- --------------------------
Date: 1-10-03
----------------------------
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EXHIBIT 1
December 18, 2002
Xxxxxxx X. Xxxxx
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Re: Offer of Employment
Dear Xxxxxxx:
On behalf of Interland, I am pleased to offer you the position of Vice
President, Information Technology and Infrastructure, reporting to Xxxx Xxxxxx,
Chief Executive Officer and Chairman of the Board. Your anticipated start date
is Monday, January 6, 2002 ("Start Date"), unless otherwise approved by
Interland in advance. The following highlights the essential terms of your
employment, which will become final once you have accepted this offer in
writing.
You will have the opportunity to enter into an employment agreement with
Interland. Your Employment Agreement, and appointment as an officer of the
company will be subject to final approval by the Board of Directors. Your base
salary will be $7692.31 per bi-weekly pay period based on an annual salary of
$200,000. Subject to the approval of the Board of Directors you will be granted
an option to purchase 150,000 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 Interland's
performance-based incentive compensation program, where you will have the
opportunity to earn a target incentive of up to forty percent (40%) of the base
salary paid to you during the defined performance period.
To assist you with your relocation from Austin, TX to Atlanta, GA we
will offer you a comprehensive relocation package including, but not limited to,
a household goods move and reimbursement of normal and customary moving
expenses. Your relocation coordinator will discuss the details of this package
with you. Your relocation expenses will be subject to repayment if you resign
your employment within twelve (12) months after your start date. Please note
that the expenses paid by Interland will be considered as compensation on your
W-2 at the end of the year. We suggest you consult your tax advisor for further
details.
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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 upon your start
date.
Your employment is subject to completion of all aspects of our standard
application and hiring processes for new team members. We will also need you to
provide us 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, a Confidentiality Agreement, and an
acknowledgment with respect to Interland's Employment Policy Manual.
Our offer of employment will remain open until close of business on Tuesday,
December 31, 2002. Please acknowledge your receipt of this letter and desire to
begin work on your anticipated start date by signing where indicated below, and
faxing under cover letter to (000) 000-0000. If I do not receive such a response
from you by Tuesday, December 31, 2002, 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 Interland will be on an "at-will" basis, meaning that both you
and Interland 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,
Xxx Xxxxxxxx
Senior Vice President and Chief Human Resource Officer
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.
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By: Date:
---------------------------------- -----------
Xxxx Xxxxx
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EXHIBIT 2
CONFIDENTIALITY, INVENTION ASSIGNMENT, AND NON-COMPETITION AGREEMENT
INTERLAND, INC. AND ITS SUBSIDIARIES, with a place of business located at 000
Xxxxxxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 ("Interland"), and
the undersigned managerial employee ("Employee"), agree, in connection with
Employee's employment by Interland and in consideration of the rights and
benefits given to Employee in connection with such employment (the receipt and
consideration of which is hereby acknowledged) agree as follows.
1) Confidentiality.
a) During Interland's employment of Employee (whether in
Employee's current capacity or in any other future capacity),
Interland may disclose to Employee, either orally, in writing
or by other means, trade secrets and proprietary information
concerning Interland's business, finances, products,
customers, vendors, computer technology and other technical,
commercial or financial affairs of Interland which are not in
the public domain and which have been reasonably restricted by
Interland as confidential, hereinafter referred to as the
"CONFIDENTIAL INFORMATION."
b) Employee shall hold in trust and confidence the CONFIDENTIAL
INFORMATION and shall not disclose such CONFIDENTIAL
INFORMATION to any third party, except as agreed by Interland
in writing.
c) Employee agrees not to use the CONFIDENTIAL INFORMATION for
any purpose other than in the performance of Employee's duties
as an employee of Interland.
d) Employee's obligations in this Section 1 will not apply to any
CONFIDENTIAL INFORMATION which was: (i) at the time of
disclosure to Employee, in the public domain; (ii) after
disclosure to Employee, published or otherwise, becomes part
of the public domain through no fault of Employee; (iii)
without a breach of duty owed to Interland, in Employee's
possession at the time of disclosure to Employee; (iv)
received after disclosure to Employee of such information from
a third party who had a lawful right to and, without a breach
of duty owed to Interland, did disclose such information to
Employee; or (v) independently developed by Employee without
reference to CONFIDENTIAL INFORMATION.
e) The covenants of confidentiality set forth herein (i) will
apply after the date hereof to any CONFIDENTIAL INFORMATION
disclosed to Employee and (ii) will continue and must be
maintained from the date hereof until termination of
Employee's employment, plus (A) with respect to trade secrets
(as defined by applicable law), at any and all times after
termination of Employee's employment during which such trade
secrets retain their status as such under applicable law;
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and (B) with respect to CONFIDENTIAL INFORMATION, for a period
equal to the shorter of two (2) years after termination of
Employee's employment, or until such CONFIDENTIAL INFORMATION
no longer qualifies as CONFIDENTIAL INFORMATION under this
Agreement or applicable law.
2) Inventions
a) Employee hereby irrevocably assigns to Interland all of
Employee's rights to all Subject Inventions (as defined below)
in the United States and all other countries and the right to
claim priority therein. "Subject Invention" means any
Invention (as defined below) which is conceived by Employee
solely or jointly with others and (i) relates to the actual or
anticipated business, research or development of Interland,
(ii) results from any work performed by Employee using any
equipment, facilities, materials, Confidential Information or
personnel of Interland, or (iii) is suggested by or results
from any task assigned or performed by Employee for or on
behalf of Interland. "Invention" means any idea, invention,
discovery, improvement, innovation, design, process, method,
formula, technique, machine, article of manufacture,
composition of matter, algorithm or computer program, as well
as improvements thereto.
b) If Employee has previously conceived of any Invention or
acquired any ownership interest in any Invention, which: (i)
is Employee's property, solely or jointly; (ii) is not
described in any issued patent as of the commencement of
Employee's employment with Interland; and (iii) would be a
Subject Invention if such Invention was made while an
Interland employee; then Employee must, at Employee's
election, either: (i) provide Interland with a written
description of the Invention on Exhibit 2.1, in which case the
written description (but no rights to the Invention) shall
become the property of Interland; or (ii) provide Interland
with the license described in Section 2(c) of this Agreement.
c) If Employee has previously conceived or acquired any ownership
interest in an Invention described above in Section 2(b) and
Employee elects not to disclose such Invention to Interland as
provided above, then Employee hereby grants to Interland a
nonexclusive, paid up, royalty-free license to use and
practice the Invention, including a license under all patents
to issue in any country which pertain to the Invention.
d) If Employee owns any issued United States Patent or foreign
equivalent thereof, or Employee is an inventor, either
individually or jointly, of any issued United States Patent or
foreign equivalent thereof, Employee must provide the United
States Patent number and/or foreign number for any such patent
or foreign equivalent thereof in Exhibit 2.1. Otherwise,
Employee represents that Employee owns no United States Patent
or foreign equivalent thereof, individually or jointly, except
those described on Exhibit 2.1.
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e) Employee agrees that should Interland elect to file an
application for patent, either in the United States or in any
foreign country on a Subject Invention for which Employee is
an inventor, Employee will execute all necessary documentation
relating to the patent application, including formal
assignments to Interland, and will cooperate with attorneys or
other persons designated by Company to provide all information
necessary for the prosecution of the patent application(s) in
the United States and any foreign country. Employee also
agrees to assist Interland in every proper way to maintain its
patents during and following the period of employment
including, but not limited to, the performance of all lawful
acts, such as the giving of testimony in any interference
proceedings, infringement suits, or other litigation, as may
be deemed necessary or advisable by Interland.
3) Copyrights.
a) Employee agrees that any Works (as defined below) created by
Employee in the course of Employee's duties as an employee of
Interland are subject to the "Work for Hire" provisions
contained in Sections 101 and 201 of the United States
Copyright Law, Title 17 of the United States Code. "Work"
means any copyrightable work of authorship, including without
limitation, any technical descriptions for products and
services, user's guides, graphical works, audiovisual works,
sound recordings, advertising materials, computer programs,
web sites and content and any contribution to such materials.
All right, title and interest to copyrights in all Works that
have been or will be prepared by Employee within the scope of
Employee's employment with the Company will be the property of
the Company. Employee further agrees that, to the extent the
provisions of Title 17 of the United States Code do not vest
the copyrights to any Works in the Company, Employee hereby
assigns to the Company all right, title and interest to
copyrights that Employee may have in the Works.
b) If Employee owns any ownership interest in any Work, Employee
will list any such Work on Exhibit 2.1. Otherwise, Employee
will not claim any ownership rights in any Works, except those
described on Exhibit 2.1.
c) Employee also agrees to assist the Company in every proper way
to maintain its Copyrights during and following the period of
employment including, but not limited to, the performance of
all lawful acts, such as the giving of testimony in any
infringement suits or other litigation as may be deemed
necessary or advisable by the Company.
4) Non-Solicitation of Customers. During the term of Employee's employment
by Interland and for a period of six (6) months following the
termination of such employment, Employee shall not, either directly or
indirectly, on Employee's behalf or on behalf of others (a) solicit,
divert or appropriate to any Competing Business (as defined below) or
(b) attempt to solicit, divert or appropriate to any Competing
Business, any business from any customer or actively sought prospective
customer of Interland with whom Employee had contact on behalf of
Interland. "Competing
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Business" means any business organization of whatever form engaged,
either directly or indirectly, which is the same as, or substantially
the same as, the Business of Interland. "Business of Interland" means
the business of developing and providing Web hosting and related
services and products including without limitation email services,
website development and hosting and e-commerce services.
5) Non-Solicitation of Employees. During the term of Employee's employment
by Interland and for a period of one (1) year following the termination
of Employee's employment, Employee shall not, either directly or
indirectly, on Employee's own behalf or on behalf of others, solicit,
divert or hire away, or attempt to solicit, divert, or hire away, any
person employed by Interland at any facility where Employee performed
services or any person employed by Interland with whom Employee had
regular contact in the course of Employee's employment by Interland.
6) Contracts With Others
a) Employee agrees to provide to the Company, upon the execution
and delivery of this Agreement, a copy of the pertinent
portions of any employment, consulting or subcontracting
agreement and other similar documents, (described on Exhibit
2.1), executed by Employee with a former employer or any
business or person with which Employee has been associated,
which prohibits Employee during a period of time from: (i)
competing with or participating in a business which competes
with Employee's former employer or business; (ii) soliciting
personnel of the former employer or business to leave the
former employer's employment or to leave the business; or
(iii) soliciting customers of the former employer or business
on behalf of another business.
b) Employee represents to the Company that Employee has not
entered into any agreement with any other party which purports
to require Employee to assign any Work or any Invention
created, conceived or first practiced by Employee during a
period of time which includes the date of Employee's
commencement of employment with the Company nor is Employee
subject to any law, court order or regulation which purports
to require such assignment, except as described on Exhibit
2.1. Employee will obtain and provide to the Company a copy of
the above described agreement(s) and a reference to any such
law, court order or regulation.
7) Non-Competition Employee acknowledges that he or she is being hired by
Interland because of his or her unique skills and abilities and that,
by virtue of being hired by Interland, Employee will learn special,
unique and confidential matters pertaining to Interland and the
Business of Interland. Employee agrees that, during Employee's
employment and for six (6) months after the termination of Employee's
employment for any reason (such period being the "Non-Competition
Period"), Employee will not, directly or indirectly, (i) be employed
(whether as an employee or as a consultant) for the purpose of
providing Protected Services to a Competing Business in the Protected
Territory, (ii) purchase or accept a beneficial interest in a Competing
Business in the
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Protected Territory (except that Employee may purchase publicly-traded
securities in Competing Businesses so long as Employee's holdings in
such Competing Business do not exceed one percent (1%) of the aggregate
outstanding shares in such Competing Business, or (iii) serve as on the
board of directors or similar governing body of any Competing Business.
For purposes of this Section, "Protected Territory" means (y) the area
within fifty (50) miles of Interland's headquarters location on the
date Employee's employment is terminated and (z) the area within fifty
(50) miles of Employee's primary place of work on behalf of Interland
on the date Employee's employment is terminated. For purposes of this
Section, "Protected Services" means those services and other services
reasonably related thereto that Employee is being hired to provide to
Interland.
8) Miscellaneous. This Agreement may not be amended, nor any obligation
waived, except in a writing signed by Interland and Employee. This
Agreement is not assignable or delegable in whole or in part by
Employee without the written consent of Interland. This Agreement shall
be governed and construed by the laws of the State of Georgia, without
reference to conflict of law principles. An executed original of this
Agreement may be delivered by facsimile, which shall be binding as an
original. If any part of this 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.
INTERLAND, INC. EXECUTIVE
By: /s/ Xxx Xxxxxxxx /s/ Xxxxxxx Xxxxx
------------------------- -----------------------
Name: Xxx Xxxxxxxx Name: Xxxxxxx Xxxxx
-------------------------
Title: SVP - Human Resources Date: 1/13/03
------------------------- -----------------
Date: 1-10-03
-------------------------
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