Exhibit 10.3
Employment and Non-Disclosure Agreement with Xxxxxxx Xxxxxx XxXxxxxx
This Employment Agreement (this "Agreement"), dated as of November 26, 1999
between XxxxxxxxXxxxxx.xxx, a Nevada corporation ("Employer"), and Xxxxxxx
Xxxxxx XxXxxxxx, an individual ("Employee");
W I T N E S S E T H:
WHEREAS, Employer desires to retain the services of Employee upon the terms and
conditions set forth herein; and
WHEREAS, Employee conceived and has partially developed, prior to entering
employment with Employer or any of its subsidiaries, computer software and/or
programs to which the parties refer as the Local Hard Drive Product, all rights
in and to which Local Hard Drive Product Employer desires to obtain; and
WHEREAS, Employee is willing to provide services to Employer and to assign to
Employer all rights in and to the Local Hard Drive Product upon the terms and
conditions set forth herein;
A G R E E M E N T S:
NOW, THEREFORE, for and in consideration of the foregoing premises and for other
good and valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, Employer and Employee hereby agree as follows:
EMPLOYMENT
Employer will employ Employee and Employee will accept employment by Employer as
its Chief Technical Officer upon the terms and conditions set forth herein.
ATTENTION, EFFORT AND DUTIES
Attention and Effort
Employee will devote all of his entire productive time, ability, attention and
effort to Employer's business and will skillfully serve its interests during the
term of this Agreement; provided, however, that Employee may devote reasonable
periods of time to (a) engaging in personal investment activities, (b) serving
on the Board of Directors of other corporations, if such service would not
otherwise be prohibited by paragraph 8 hereof, and (c) engaging in charitable or
community service activities, so long as none of the foregoing additional
activities materially interfere with Employee's duties as Chief Technical
Officer.
Duties
The Chief Technical Officer has a leadership role with respect to all technical
operations and developments in Employer's business. The duties of the Chief
Technical Officer shall include, without limitation, reporting to the Chief
Executive Officer from time to time and as requested; coordinating with the
Chief Executive Officer and the Director of Business Development with respect to
projects for clients of Employer; developing and supervising others in
developing software for use in Employer's products and projects; performing and
supervising implementation of quality control with respect to products and
project implementation; advising Employer with respect to technology
acquisitions; and ensuring that Employer's technical, mechanical and computer
systems are operating as expected.
TERM
Unless otherwise terminated pursuant to paragraph 6 of this Agreement,
Employee's term of employment under this Agreement shall begin on November 26,
1999, and expire on November 26, 2000.
COMPENSATION
During the term of this Agreement, Employer agrees to pay or cause to be paid to
Employee, and Employee agrees to accept in exchange for the services rendered
hereunder by him, the following compensation:
Salary
Employee's compensation shall consist of an annual salary of ninety-two thousand
dollars ($92,000) before all legally required payroll deductions and voluntary
payroll deductions, if any, authorized by Employee. Such annual salary shall be
paid in substantially equal installments and at the same intervals as other
executive employees of Employer are paid.
One-Time Grant of Stock Effective Upon Execution of Agreement
Subject to action by Employer's Board of Directors and in compliance with
applicable state and federal securities laws, upon execution of this Agreement
by both parties, Employer shall grant Employee 200,000 shares of Employer's
restricted common stock. The grant of stock described in this sub-paragraph
shall be a one-time event and shall not be construed to represent part of
Employee's annual salary described in sub-paragraph 4.1 of this Agreement.
Employee shall be responsible for all withholding and/or other tax consequences
to him arising from the grant described in this paragraph.
BENEFITS
During the term of this Agreement, Employee will be entitled to participate,
subject to and in accordance with applicable eligibility requirements, in fringe
benefit programs as shall be provided from time to time by Employer to its
executive employees. Nothing in this Agreement shall preclude Employer from
terminating, altering or modifying any such benefit at any time in Employer's
sole discretion.
TERMINATION
Employment of Employee pursuant to this Agreement may be terminated as follows,
but in any case, the provisions of the Noncompetition Agreement referred to in
paragraph 8 hereto shall survive the termination of this Agreement and the
termination of Employee's employment hereunder:
By Employer
With or without Cause (as defined below), Employer may terminate the employment
of Employee at any time during the term of employment upon giving Notice of
Termination (as defined below).
By Employee
Employee may terminate his employment at any time, for any reason, upon giving
Notice of Termination.
Automatic Termination
This Agreement and Employee's employment hereunder shall terminate automatically
upon the death or total disability of Employee. The term "total disability" as
used herein shall mean Employee's inability to perform the duties of the Chief
Technical Officer for a period or periods aggregating 120 calendar days in any
12-month period as a result of physical or mental illness, loss of legal
capacity or any other cause beyond Employee's control, unless Employee is
granted a leave of absence by Employer. Employee and Employer hereby
acknowledge that Employee's ability to perform the duties specified in paragraph
1 hereof is of the essence of this Agreement. Termination hereunder shall be
deemed to be effective (a) at the end of the calendar month in which Employee's
death occurs or (b) immediately upon a determination by Employer of Employee's
total disability, as defined herein.
Notice
The term "Notice of Termination" shall mean at least 90 days' written notice of
termination of Employee's employment, during which period Employee's employment
and performance of services will continue; provided, however, that Employer may,
upon notice to Employee and without reducing Employee's compensation during such
period, excuse Employee from any or all of his duties during such period. The
effective date of the termination of Employee's employment hereunder shall be
the date on which such 90-day period expires.
TERMINATION PAYMENTS
In the event of termination of the employment of Employee, all compensation and
benefits set forth in this Agreement shall terminate except as specifically
provided in this paragraph 7:
Termination by Employer
If Employer terminates Employee's employment without Cause prior to the end of
the term of this Agreement, Employee shall be entitled to receive (a)
termination payments equal to three (3) months' annual salary; and (b) any
unpaid annual salary which has accrued for services already performed as of the
date termination of Employee's employment becomes effective. If Employee is
terminated by Employer for Cause, Employee shall not be entitled to receive any
of the foregoing benefits, other than those set forth in clause (b) above.
Termination by Employee
In the case of the termination of Employee's employment by Employee, Employee
shall not be entitled to any payments hereunder, other than those set forth in
clause (b) of subparagraph 7.1 hereof.
Expiration of Term
In the case of a termination of Employee's employment as a result of the
expiration of the term of this Agreement, Employee shall not be entitled to
receive any payments hereunder, other than those set forth in clause (b) of
subparagraph 7.1 hereof.
Payment Schedule
All payments under this paragraph 7 shall be made to Employee at the same
interval as payments of salary were made to Employee immediately prior to
termination.
Cause
Wherever reference is made in this Agreement to termination being with or
without Cause, "Cause" shall include, without limitation, the occurrence of one
or more of the following events:
(a) Failure or refusal to carry out the lawful duties of Employee as Chief
Technical Officer of Employer or to carry out any directions of Employer, which
directions are reasonably consistent with the duties of the Chief Technical
Officer of Employer;
(b) Violation by Employee of a state or federal criminal law involving the
commission of a crime against Employer or a felony;
(c) Use by Employee during the term of this agreement of illegal controlled
substances; deception, fraud, misrepresentation or dishonesty by Employee; any
incident materially compromising Employee's reputation or ability to represent
Employer with the public; any act or omission by Employee which impairs
Employer's business, good will or reputation; or
(d) Any other material violation of any provision of this Agreement.
CONFIDENTIALITY, INVENTIONS, NONSOLICITATION AND NONCOMPETITION
Employee hereby enters into and agrees to be bound by the Confidential
Information, Invention, Nonsolicitation and Noncompetition Agreement (the
"Noncompetition Agreement") attached hereto. In the event of a breach of or
threatened breach by Employee of the provisions of the Noncompetition Agreement,
Employer shall be entitled to immediately terminate Employee's right to receive
any and all payments which may be due or become due under the terms of this
Agreement, it being acknowledged that the provisions of this paragraph 8 and of
the Noncompetition Agreement are essential to Employer, and that Employer would
not enter into this Agreement if it did not include this paragraph 8 and the
Noncompetition Agreement incorporated hereby. Nothing in this paragraph 8 shall
be construed to limit Employer's entitlement to any other remedies or relief set
forth, including, without limitation, such remedies and relief as are referred
to in the Noncompetition Agreement.
REPRESENTATIONS AND WARRANTIES
In order to induce Employer to enter into this Agreement, Employee represents
and warrants to Employer that neither the execution nor the performance of this
Agreement or the Noncompetition Agreement by Employee will violate or conflict
in any way with any other agreement by which Employee may be bound, or with any
other duties imposed upon Employee by corporate or other statutory or common
law.
LOCAL HARD DRIVE PRODUCT
Representations and Warranties
In order to induce Employer to enter into this Agreement, Employee represents
and warrants to Employer that to the best of Employee's knowledge: (a) the
Local Hard Drive Product does not infringe or misappropriate any patent,
copyright, trade secret or other proprietary right of any third party; (b)
Employee is sole owner of, and possessor of all rights in and to, the Local Hard
Drive Product, and (c) Employee has all necessary rights to assign the Local
Hard Drive Product to Employer hereunder, and such assignment will not violate
any agreement or other obligation of Employee to any third party. Employee will
indemnify and hold harmless Employer against any claim that Employer's transfer
or use of the Local Hard Drive Product infringes or misappropriates any patent,
copyright, trade secret or other proprietary right of any third party, or
otherwise breaches any representation or warranty of Employee under this Section
10.1.
Entitlement to Royalties
In partial consideration for Employee's agreement to assign to Employer all
rights in and to the Local Hard Drive Product, effective upon execution of this
Agreement, Employee shall be entitled to royalties of twelve-and-one-half
percent (12.5 %) of Employer's gross receipts on sales, leases or other
transfers of the Local Hard Drive Product or rights to use the Local Hard Drive
Product to third parties.
Assignment of Rights
For good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Employee hereby assigns and transfers, and agrees to assign
and transfer, to Employer all right title and interest (including, without
limitation, any and all copyright, patent, trademark, trade secret and other
intellectual property or proprietary rights of any kind, including rights of
registration) in and to the Local Hard Drive Product defined in paragraph ___
hereto.
Additional Action
Employee will take such action (including signature and assistance in
preparation of documents or the giving of testimony) as may be requested by the
Company to evidence, transfer, vest or confirm the Company's rights and
ownership in the Local Hard Drive Product. If Employer is unable for any reason
to secure Employee's signature to fulfill the intent of paragraph 10.2 of this
Agreement or to apply for or to pursue any application for any United States or
foreign patents or copyright registrations covering the Local Hard Drive Product
assigned to Employer above, then Employee irrevocably appoints Employer and its
authorized agents as his agent and attorney in fact, to transfer, vest or
confirm Employer's rights and to execute and file any such applications and to
do all other lawful acts to further the prosecution and issuance of letters
patent or copyright registrations with the same legal force as if done by
Employee.
19.1. NOTICE AND CURE OF BREACH
Whenever a breach of this Agreement by either party is relied upon as
justification for any action taken by the other party pursuant to any provision
of this Agreement, other than pursuant to the definition of "Cause" set forth in
subparagraph 7.5 hereof, before such action is taken, the party asserting the
breach of this Agreement shall give the
other party at least 14 days' prior written notice of the existence and the
nature of such breach before taking further action hereunder and shall give the
party purportedly in breach of this Agreement the opportunity to correct such
breach during the 14-day period.
19.2. FORM OF NOTICE
All notices given hereunder shall be given in writing, shall specifically refer
to this Agreement and shall be personally delivered or sent by telecopy or other
electronic facsimile transmission or by registered or certified mail, return
receipt requested, at the address set forth below or at such other address as
may hereafter be designated by notice given in compliance with the terms hereof:
If to Employee: Xxxxxxx Xxxxxx XxXxxxxx
If to Employer: President
XxxxxxxxXxxxxx.xxx
00000 X.X. 0xx Xxxxxx
Xxxxx 0000
Xxxxxxxx, XX 00000
Copy to: Xxxx Xxxxx-Xxxxxxx
Xxxxxxx Coie
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
If notice is mailed, such notice shall be effective upon mailing, or if notice
is personally delivered or sent by telecopy or other electronic facsimile
transmission, it shall be effective upon receipt.
19.3. ASSIGNMENT
This Agreement is personal to Employee and shall not be assignable by Employee.
Employer may assign its rights hereunder to (a) any corporation resulting from
any merger, consolidation or other reorganization to which Employer is a party
or (b) any corporation, partnership, association or other person to which
Employer may transfer all or substantially all of the assets and business of
Employer existing at such time. All of the terms and provisions of this
Agreement shall be binding upon and shall inure to the benefit of and be
enforceable by the parties hereto and their respective successors and permitted
assigns.
19.4. WAIVERS
No delay or failure by any party hereto in exercising, protecting or enforcing
any of its rights, titles, interests or remedies hereunder, and no course of
dealing or performance with respect thereto, shall constitute a waiver thereof.
The express waiver by a party hereto of any right, title, interest or remedy in
a particular instance or circumstance shall not constitute a waiver thereof in
any other instance or circumstance. All rights and remedies shall be cumulative
and not exclusive of any other rights or remedies.
19.5. AMENDMENTS IN WRITING
No amendment, modification, waiver, termination or discharge of any provision of
this Agreement, nor consent to any departure therefrom by either party hereto,
shall in any event be effective unless the same shall be in writing,
specifically identifying this Agreement and the provision intended to be
amended, modified, waived, terminated or discharged and signed by Employer and
Employee, and each such amendment, modification, waiver, termination or
discharge shall be effective only in the specific instance and for the specific
purpose for which given. No provision of this Agreement shall be varied,
contradicted or explained by any oral agreement, course of dealing or
performance or any other matter not set forth in an agreement in writing and
signed by Employer and Employee.
20. APPLICABLE LAW
This Agreement shall in all respects, including all matters of construction,
validity and performance, be governed by, and construed and enforced in
accordance with, the laws of the state of Washington, without regard to any
rules governing conflicts of laws.
20.1. SEVERABILITY
If any provision of this Agreement shall be held invalid, illegal or
unenforceable in any jurisdiction, for any reason, including, without
limitation, the duration of such provision, its geographical scope or the extent
of the activities prohibited or required by it, then, to the full extent
permitted by law (a) all other provisions hereof shall remain in full force and
effect in such jurisdiction and shall be liberally construed in order to carry
out the intent of the parties hereto as nearly as may be possible, (b) such
invalidity, illegality or unenforceability shall not affect the validity,
legality or enforceability of any other provision hereof, and (c) any court or
arbitrator having jurisdiction thereover
shall have the power to reform such provision to the extent necessary for such
provision to be enforceable under applicable law.
20.2. HEADINGS
All headings used herein are for convenience only and shall not in any way
affect the construction of, or be taken into consideration in interpreting, this
Agreement.
20.3. COUNTERPARTS
This Agreement, and any amendment or modification entered into pursuant to
paragraph 16 hereof, may be executed in any number of counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute one and
the same instrument.
20.4. ADVICE OF COUNSEL
Employee acknowledges having had ample opportunity to review this Agreement and
the Noncompetition Agreement and to seek legal advice from counsel of Employee's
choosing regarding the terms of this Agreement and the Noncompetition Agreement,
and has either sought such advice or has freely chosen to forego it.
20.5. ENTIRE AGREEMENT
This Agreement (including the Noncompetition Agreement) on and as of the date
hereof constitutes the entire agreement between Employer and Employee with
respect to the subject matter hereof and all prior or contemporaneous oral or
written communications, understandings or agreements between Employer and
Employee with respect to such subject matter are hereby superseded and nullified
in their entireties.
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement on
the date set forth above.
EMPLOYEE:
EMPLOYER:
By
Its
Confidential Information, Inventions, Nonsolicitation and Noncompetition
Agreement Xxxxxxx Xxxxxx XxXxxxxx, an individual ("Employee") and
XxxxxxxxXxxxxx.xxx, a Nevada corporation ("Employer"), hereby enter into this
Confidential Information, Inventions, Nonsolicitation and Noncompetition
Agreement ("Noncompetition Agreement").
RECITALS
1. Employer is engaged in the business of providing consulting services to the
computer and high-technology industries. To date, employer has concentrated its
consulting business in the Puget Sound region of Washington State, but Employer
anticipates expanding the geographical area in which it provides consulting
services to include the states of Oregon and Idaho and all of Washington State.
Employer is also in the business of developing computer software for sale,
license and/or lease throughout the world.
2. Employer possesses and will continue to develop trade secrets, proprietary
information, secret technology, engineering data and customer information that
constitute valuable, special and unique assets of Employer. Employer has
incurred considerable expense and risk in developing its confidential and
proprietary information and materials, and it expects to continue doing so.
3. Upon execution of the Employment Agreement (the "Employment Agreement") to
which this Noncompetition Agreement is attached and into which this
Noncompetition Agreement is incorporated by reference, Employee will become
employed by Employer as Chief Technical Officer of Employer. Employee
acknowledges that the nature of his employment with Employer may provide
opportunities for training, experience, and professional development. Employer
is willing to employ Employee under the terms set forth in the Employment
Agreement, provided that Employee agrees to the terms and conditions of this
Noncompetition Agreement.
4. This Agreement is essential to Employer, and Employer will not employ
Employee without it.
AGREEMENTS
For the reasons recited above, and in consideration of the mutual promises and
covenants set forth in this Agreement, and in further consideration of
Employee's employment as Chief Technical Officer with Employer, the
compensation paid to him by Employer, stock granted to him by Employer, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Employee hereby agrees as follows:
1. Definitions
1.1 "Competing Business" means any business whose efforts are in competition
with the efforts of Employer. A Competing Business includes any business whose
efforts involve any research and development, products or services in
competition with products or services which are, during and at the end of the
Term, either (a) produced, marketed or otherwise commercially exploited by
Employer or (b) in actual or demonstrably anticipated research or development by
Employer.
1.2 "Confidential Information" means any information that (a) relates to the
business of Employer, (b) is not generally available to the public, and (c) is
conceived, compiled, developed, discovered or received by, or made available to,
Employee during the Term, whether solely or jointly with others, and whether or
not while engaged in performing work for Employer. Confidential Information
includes information, both written and oral, relating to Inventions, trade
secrets and other proprietary information, technical data, products, services,
finances, business plans, marketing plans, legal affairs, suppliers, clients,
prospects, opportunities, contracts or assets of Employer. Confidential
Information also includes any information which has been made available to
Employer by or with respect to third parties and which Employer is obligated to
keep confidential.
1.3 "Invention" means any product, device, technique, know-how, computer
program, algorithm, method, process, procedure, improvement, discovery or
invention, whether or not patentable or copyrightable and whether or not reduced
to practice, that (a) is within the scope of Employer's business, research or
investigations or results from or is suggested by any work performed by Employee
for Employer and (b) is created, conceived, reduced to practice, developed,
discovered, invented or made by Employee during the Term, whether solely or
jointly with others, while engaged in performing work for Employer.
1.4 "Material" means any product, prototype, model, document, diskette, tape,
picture, design, recording, writing or other tangible item which contains or
manifests, whether in printed, handwritten, coded, magnetic or other form, any
Confidential Information, Invention or Proprietary Right.
1.5 "Person" means any corporation, partnership, trust, association,
governmental authority, educational institution, individual or other entity.
1.6 "Proprietary Right" means any patent, copyright, trade secret, trademark,
trade name, service xxxx, maskwork or other protected intellectual property
right in any Confidential Information, Invention or Material.
1.7 "Term" means the term of Employee's employment with Employer, whether on a
full-time, part-time or consulting basis.
2. Ownership and Use
2.1 Employer will be the exclusive owner of all Confidential Information,
Inventions, Materials and Proprietary Rights. To the extent applicable, all
Materials will constitute "works for hire" under applicable copyright laws.
2.2 Employee assigns and transfers, and agrees to assign and transfer, to
Employer all rights and ownership that Employee has or will have in Confidential
Information, Inventions, Materials and Proprietary Rights, subject to the
limitations set forth in Section 2.5 and in the notice below. Employee will take
such action (including signature and assistance in preparation of documents or
the giving of testimony) as may be requested by Employer to evidence, transfer,
vest or confirm Employer's rights and ownership in Confidential Information,
Inventions, Materials and Proprietary Rights. Employee agrees to keep and
maintain adequate and current written records of all Inventions and Proprietary
Rights during the Term. The records will be in the form of notes, sketches,
drawings, and any other format that may be specified by Employer. The records
will be available to and remain the sole property of Employer at all times.
If Employer is unable for any reason to secure Employee's signature to
fulfill the intent of the foregoing paragraph or to apply for or to pursue any
application for any United States or foreign patents or copyright registrations
covering Inventions assigned to Employer above, then Employee irrevocably
appoints Employer and its authorized agents as his agent and attorney in fact,
to transfer, vest or confirm Employer's rights and to execute and file any such
applications and to do all other lawful acts to further the prosecution and
issuance of letters patent or copyright registrations with the same legal force
as if done by Employee.
2.3 Except as required for performance of Employee's work for Employer or as
authorized in writing by Employer, Employee will not (a) use, disclose, publish
or distribute any Confidential Information, Inventions, Materials or Proprietary
Rights or (b) remove any Materials from Employer's premises.
2.4 Employee will promptly disclose to Employer all Confidential Information,
Inventions, Materials or Proprietary Rights.
2.5
Exhibit A is a list describing all inventions, original works of authorship,
developments, improvements, and trade secrets to be covered by this agreement,
in addition to those listed by the LHD Product Specification; or, if no such
-------------------------
list is attached, Employer represents that there are no such Additional
Inventions.
NOTICE: Notwithstanding any other provision of this Noncompetition
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Agreement to the contrary, this Noncompetition Agreement does not obligate
Employee to assign or offer to assign to Employer any of Employee's rights in an
invention for which no equipment, supplies, facilities or trade secret
information of Employer was used and which was developed entirely on Employee's
own time, unless (a) the invention relates (i) directly to the business of
Employer or (ii) to Employer's actual or demonstrably anticipated research or
development, or (b) the invention results from any work performed by Employee
for Employer; provided, however that, notwithstanding any provision of this
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Noncompetition Agreement to the contrary, Employee acknowledges that he has
irrevocably assigned to Employer all rights in and to the Local Hard Drive
Product as provided in the Employment Agreement between Employee and Employer
executed contemporaneously with this Agreement. This satisfies the written
notice and other requirements of RCW 49.44.140.
Section 3. Further Obligations
3.1 During the Term, Employee will not, directly or indirectly, engage in, be
employed by, perform services for or otherwise participate in any Competing
Business or any other activity which conflicts with the commercial interests of
Employer.
3.2 Employee warrants that his execution, delivery and performance of this
Agreement and the performance of his other obligations and duties to Employer
will not cause any breach, default or violation of any other employment,
nondisclosure, confidentiality, consulting or other agreement to which Employee
is a party or by which Employee may be bound. Attached as Exhibit B is a list of
all prior agreements now in effect under which Employee has agreed to keep
information confidential or not to compete or solicit employees of any Person.
3.3 Employee agrees that he will not use in performance of his work for Employer
or disclose to Employer any trade secret, confidential or proprietary
information of any prior employer or other Person if and to the extent that such
use or disclosure may cause a breach, default or violation of any obligation or
duty that Employee owes to such other Person (e.g., under any agreement or
applicable law). Employee warrants that his compliance with this paragraph will
not prohibit, restrict or impair the performance of his work, obligations and
duties to Employer.
Section 4. Noncompetition and Nonsolicitation
4.2 During the Term and for one year after the end of the Term, Employee agrees
that he will not (except on behalf of or with the prior written consent of
Employer), directly or indirectly (a) solicit, divert, appropriate to or accept
on behalf of any Competing Business, or (b) attempt to solicit, divert,
appropriate to or accept on behalf of any Competing Business, any business from
any customer or actively sought prospective customer of Employer with whom
Employee has dealt, whose dealings with Employer have been supervised by
Employee or about whom Employee has acquired Confidential Information in the
course of his employment.
Section 5. Termination of Relationship
5.1 Employee hereby authorizes and specifically agrees to allow Employer to
deduct from his wages the value of any property (including equipment, goods, or
other items provided to him by Employer during his employment) which Employee
fails to return when requested to do so by Employer, provided that such
deduction (a) does not exceed the cost of the item, (b) does not reduce
Employee's wages below minimum wage, (c) is not made for normal wear and tear on
or nonwillful loss or breakage of the provided item(s), and (d) is accompanied
with a list of all items for which deductions are being made.
5.2 Employee agrees that at the end of the Term Employee will deliver to
Employer (and will not keep in his possession, re- create or deliver to anyone
else) any and all Materials and other property belonging to Employer, its
successors or assigns. Employee agrees to sign and deliver the "Termination
Certification" attached as Exhibit B.
5.3 At the end of the Term, Employee agrees to provide the name of his new
employer, if any, and consent to notification by Employer to his new employer
about his rights and obligations under this Agreement in the form of Exhibit C.
Section 6. Terms of Employment
Nothing in this Noncompetition Agreement shall modify any of the terms
Employee's employment as set forth in the Employment Agreement between Employee
and Employer executed contemporaneously with this Agreement.
Section 7. Miscellaneous
7.1 Survival. This Noncompetition Agreement will survive the end of the Term.
7.2 Injunctive Relief; Costs. Employee acknowledges that if Employee does not
abide by his obligations in this Noncompetition Agreement, Employer will suffer
immediate and irreparable harm, and that the damage to Employer will be
difficult to measure and financial relief will be incomplete. Accordingly,
Employer will be entitled to injunctive relief and other equitable remedies in
the event of a breach by Employee of any obligation
under this Noncompetition Agreement. The rights and remedies of Employer under
this section are in addition to all other remedies. Further, in any legal action
or other proceeding in connection with this Noncompetition Agreement (e.g., to
recover damages or other relief), the prevailing party will be entitled to
recover its reasonable attorneys' fees and other costs incurred.
7.3 Severability. This Noncompetition Agreement will be enforced to the fullest
extent permitted by applicable law. If for any reason any provision of this
Noncompetition Agreement is held to be invalid or unenforceable to any extent,
then (a) such provision will be interpreted, construed or reformed to the extent
reasonably required to render the same valid, enforceable and consistent with
the original intent underlying such provision and (b) such invalidity or
unenforceability will not affect any other provision of this Agreement or any
other agreement between Employer and Employee.
7.5 Governing Law; Jurisdiction; Venue. This Agreement will be governed by the
laws of the state of Washington without regard to principles of conflicts of
law. Employee irrevocably consents to the jurisdiction and venue of the state
and federal courts located in King County, Washington in connection with any
action relating to this Agreement. Employee will not bring any action relating
to this Agreement in any other court.
7.5 Amendments. Neither this Noncompetition Agreement nor any provision may be
amended except by written agreement signed by the parties.
7.6 Waivers. No waiver of any breach shall be considered valid unless in
writing, and no waiver shall be a waiver of any subsequent breach.
7.7 Acknowledgment. Employee has carefully read all of the provisions of this
Agreement and agree that (a) the same are necessary for the reasonable and
proper protection of Employer's business, (b) Employer has been induced to enter
into and/or continue its relationship with Employee in reliance upon his
compliance with the provisions of this Agreement, (c) every provision of this
Agreement is reasonable with respect to its scope and duration, (d) Employee has
executed this Agreement without duress or coercion from any source, and (e)
Employee has received a copy of this Agreement.
This Agreement shall be effective as of November 26, 1999.
/S/ XXXXXXX XXXXXX XXXXXXXX
ACCEPTED:
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/S/ XXXXXX XXXXXXX
PRESIDENT
