ACTIVE VOICE CORPORATION
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into this 18th day of
May, 1999 by and between Active Voice Corporation, a Washington corporation (the
"Employer") and Xxx Xxxx(the "Employee").
The Employer desires to employ or continue employing the Employee under
the terms and conditions in this Agreement and the Employee desires to become
employed or continue employment with the Employer under the terms and conditions
of this Agreement.
Therefore, in consideration of the mutual promises contained in this
Agreement, the parties agree as follows:
1. EMPLOYMENT AND TITLE.
The Employee shall be assigned initially to Executive Vice President of
Sales and Marketing position. The Employee's position, job duties and
responsibilities may change from time to time as the Employer's business
changes.
2. TERM OF AGREEMENT.
This Agreement shall be for an indefinite period of time and may be
terminated at any time pursuant to Paragraph 7. During the term of this
Agreement, Employee shall devote his/her full-time and attention and his/her
best efforts to the business of the Employer. Full-time shall be defined as at
least forty (40) hours per week.
3. COMPENSATION.
For all services rendered by the Employee under this Agreement, the
Employer shall pay the Employee an initial base salary of $12,500.00 PER PAY
PERIOD (less deductions). The Employer may change the compensation paid to the
Employee, including commissions, incentives, and/or other benefits, according to
its usual personnel practices. Changes in compensation shall be approved in
writing by the Employer's President (or designee) and need not be signed by the
Employee to be effective under Paragraph 13 of this Agreement.
4. DUTIES.
The Employee will perform all the duties and responsibilities of the
Employee's assigned position or other duties and responsibilities as requested
by the Employer.
1
5. EXPENSES.
Subject to the Employer's policies, procedures and standards, the
Employee is authorized to incur reasonable expenses for promoting the business
of the Employer, including expenses for entertainment, travel, and/or similar
items. The Employer will reimburse the Employee for reasonable business expenses
in accordance with the Employer's expense reimbursement policies, procedures and
standards. Any unreimbursed expenses remain the responsibility of the Employee.
6. MEDICAL AND DENTAL INSURANCE.
The Employer currently sponsors various group insurance plans. The
Employee shall be eligible to participate in such plans according to the terms
of such plans. To the extent that the Employee is not covered under such plans,
the Employer shall pay an equivalent amount to a plan mutually selected by the
Employer and the Employee.
7. TERMINATION OF AGREEMENT.
This Agreement shall be terminated upon the occurrence of any one or
more of the following events:
(a) The death of the Employee;
(b) The parties' mutual agreement to terminate this Agreement at
a date mutually agreeable to both parties;
(c) The Employee giving a 30 day written notice of resignation
to the Employer;
(d) The Employer giving a thirty (30) day notice of termination,
with or without cause, to the Employee.
In the event of a termination under Subparagraphs 7(c) or 7(d), the Employee
shall receive his/her regular compensation up to the effective date of
termination and shall continue to render services to the Employer, unless the
Employer, at its option, chooses to waive this obligation, and require no
further services during all or part of the notice period; provided, however,
that in such an event the Employer will still continue to pay the Employee's
compensation through the effective date of termination.
8. NONSOLICITATION.
The Employee agrees that he/she will not, at any time while employed by the
Employer and for twelve (12) months following termination of the Employee's
employment with the Employer, directly or indirectly solicit or entice any of
the following to cease, terminate or reduce any relationship with the Employer
or to divert any business from the Employer:
(a) any executive, employee or representative of the Employer;
(b) any supplier of the Employer;
2
(c) any customer, client or account of the Employer; or
(d) any prospective customer, client or account from whom the
Employee solicited business while employed by the Employer.
Further, the Employee will not disclose the names, addresses, telephone numbers,
compensation or arrangements between the Employer and any person or entity
described in (a), (b), or (c) above to any competitor of the Employer. The
Employee acknowledges that any breach or threatened breach of this paragraph
will cause irreparable harm to the Employer, which injury may be inadequately
compensable in money damages, and that the Employer shall be entitled to
equitable relief in any court of competent jurisdiction to prevent or restrain
any such breach or threatened breach by the Employee or any persons acting for
or with him/her. Equitable relief shall include, but not be limited to,
temporary restraining orders, or preliminary or permanent injunctions, without
the necessity for posting bond or other security, the protection of which is
hereby expressly waived. The Employee also expressly acknowledges and agrees
that these equitable remedies are in addition to, and not any limitation upon,
all rights and remedies that the Employer may be entitled to under this
Agreement and any applicable law.
9. VENUE AND JURISDICTION.
This Agreement is to be interpreted according to the laws of the State
of Washington without regard to the jurisdiction in which any action or
proceeding may be initiated.
10. WAIVER OF BREACH.
The waiver by the Employer of a breach of any provision of the Agreement
by the Employee shall not operate or be construed as a waiver of any subsequent
breach by the Employee.
11. SEVERABILITY.
If any portion of this Agreement is held to be invalid, unenforceable or
void, such holding shall not have the effect of invalidating or voiding the
remainder of this Agreement. Any portion of this Agreement which is held to be
invalid, unenforceable or void shall, if possible, be deemed amended or reduced
in scope, or stricken from this Agreement, only to the extent required for the
purposes of validity and enforcement of the Agreement.
12. NOTICES.
Any demand, request, or notice that either party desires or may be
required to make or deliver to the other shall be in writing and shall be deemed
delivered when personally delivered or three (3) days after being deposited in
the United States mail, postage prepaid, in registered or certified form,
addressed (a) in the case of the Employee, to his/her last known address, and
(b) in the case of the Employer, to its principal place of business.
3
13. ASSIGNMENTS.
The Employee's obligations under this Agreement are personal and may not
be assigned, delegated, sold or otherwise transferred by him/her except as the
Employer may consent in writing. The Employer may assign its rights and
obligations under this Agreement to its successors and assigns.
14. COMPLETE AGREEMENT.
This Agreement contains the entire agreement between the parties
relating to its subject matter and supersedes all prior agreements. The parties
specifically acknowledge and agree that the Employer's personnel policies,
handbooks and procedures are not part of this Agreement, and do not constitute
employment contracts or agreements. Except as provided in Paragraph 3, no waiver
or modification of this Agreement shall be valid unless it is in writing and it
is signed by both the Employee and the Employer's President (or designee).
EMPLOYER EMPLOYEE
ACTIVE VOICE CORPORATION
BY: /s/ Xxxxx X. Xxxxx /s/ Xxx Xxxx
ITS: President
5/18/99 5/18/99
Date Date
4
ACTIVE VOICE CORP.
PROPRIETARY RIGHTS AGREEMENT
In consideration of my employment by Active Voice, Corp. ("Active
Voice") or my continued employment at will by Active Voice, whether as a regular
employee or an independent contractor, and the payment to me of salary or other
compensation, including deferred compensation, that I shall receive during my
employment, I agree as follows:
1. CONFIDENTIALITY.
1.1 I will not, without Active Voice's prior written permission,
disclose to anyone outside of Active Voice or use in other than Active Voice's
business, either during or after my employment, any confidential information or
material of Active Voice or any information or materials received in confidence
from third parties by Active Voice. I will presume that the following types of
information are all confidential except information that has clearly been made
available generally to the public: source code, product designs and methods of
operation, product and business plans, and identities of Active Voice's
customers and suppliers.
1.2 If I leave the employ of Active Voice, I will return all
property of Active Voice in my possession, including all confidential
information or material such as drawings, notebooks, reports and other
documents.
1.3 Confidential information or material of Active Voice is any
information or material: (a) generated or collected by or used in the operations
of Active Voice that relates to the actual or anticipated business or research
and development of Active Voice, or (b) suggested by or resulting from any task
assigned to me or work performed by me for or on behalf of Active Voice, and
which has not been made available generally to the public.
1.4 Because a breach of this provision may cause irreparable harm
to Active Voice with no adequate remedy, this provision may be enforced by court
order.
2. NON-COMPETITION.
2.1 To ensure that no confidential information of Active Voice is
improperly used or disclosed, I will not, during the term of my employment and
for a period of six months following termination, assist any other company,
whether as owner, shareholder, director, employee, contractor, or volunteer,
which is developing or marketing any computer software or software controlled
hardware designed for use in conjunction with telephone systems for the
following purposes: voice recording or playback, call accounting, general
purpose microcomputer connected to and communicating with a PBX.
5
2.2 Examples of companies which are currently proscribed include:
Applied Voice Technology, Panoply, Octel, Mitel, Dytel, VMX, Advanced Voice
Technology, Boston Technology, AT&T, Rolm, Unisys, Wang, NEC, Dictaphone,
Siemens, Northern Telecom, and Brooktrout.
3. CONFIDENTIALITY DUTIES TO OTHERS.
3.1 I will not disclose to Active Voice, use in its business, or
cause it to use, any information or material which is confidential to others.
3.2 I do not have in my possession or control any documents or
other materials containing confidential information of my former employers which
might be considered to be of interest to Active Voice.
3.3 On the last page of this Agreement I have listed and
identified all non-competition or non-disclosure agreements which may remain
currently binding between myself and any former employers. If I do not have any
to identify, I have written "none" on this line: ______________________________.
4. RIGHTS TO DEVELOPMENTS.
4.1 I hereby assign to Active Voice my entire right, title, and
interest in any idea, invention, design of a useful article (whether the design
is ornamental or otherwise), computer program and related documentation, and any
other Work of authorship (all hereafter called "Developments"), made or
conceived during my employment with Active Voice solely or jointly by me, or
created wholly or in part by me, whether or not such Developments are
patentable, protected by copyrights, or susceptible to other forms of
protection, where the Developments: (a) relate to the actual or anticipated
business or research or development of Active Voice, or (b) result from any task
assigned to me or work performed by me for or on behalf of Active Voice.
4.2 This assignment provision does not apply to an invention for
which no equipment, supplies, facility, or trade secret information of Active
Voice was used and which was developed entirely on my own time, unless it meets
condition (a) or (b) above.
4.3 Excluded are any Developments that I cannot assign to Active
Voice because of a prior agreement made prior to employment by Active Voice with
________________________________________________________________________________
_______________________________which is effective until
____________________________________________.
(give name and date or write "none)
4.4 I acknowledge that the copyrights and any other intellectual
property rights in designs, computer programs and related documentation, and
works of authorship, created within the scope of my employment, belong to Active
Voice by operation of law. I expressly acknowledge that Active Voice is to be
the "author," within the meaning of the United States Copyright Act (the "Act"),
of any of my work product that may be considered a "work for hire" within the
meaning of the Act.
6
5. PREEXISTING DEVELOPMENTS.
5.1 On the last page of this Agreement I have identified all
Developments not assigned by section 4 in which I have any right, title, or
interest, and which were previously made or conceived solely or jointly by me,
or written wholly or in part by me, but neither published nor filed in any
patent office, whether or not previously identified to Active Voice.
5.2 If I do not have any to identify, I have written "none" on
this line: ________________________. (Note: It is in your interest to establish
that any of the above were made, conceived, or written before your employment by
Active Voice. You should not disclose them in detail, but identify them only by
the titles and dates of documents describing them.)
5.3 In the event (and to the extent) that any work product
produced by me and delivered to Active Voice for use by Active Voice or its
customers contains any items or elements which may be proprietary to me or any
of my suppliers, I hereby grant to Active Voice an irrevocable, perpetual,
non-exclusive, royalty-free, worldwide license to reproduce, distribute copies
of, prepare derivative works based on, display, and perform the work product,
and to authorize others to do any of the foregoing.
6. SECURING AND ENFORCING PROPRIETARY RIGHTS.
In connection with any of the Developments or work product
assigned or licensed by paragraphs 5 or 7: (a) I will promptly disclose them to
Active Voice's management; and (b) I will, on Active Voice's request, promptly
execute a specific assignment of title to Active Voice or its designee, and do
anything else reasonably necessary to enable Active Voice or its designee to
secure and enforce patents, copyrights, or other forms of protection therefor in
the United States and in other countries. I irrevocably designate Active Voice
as my agent and attorney-in-fact to execute and file any applications or other
documents and to take any other actions to further the securing and enforcement
of such protection.
7. DISTRIBUTION OR ATTRIBUTION.
Active Voice and its licensees (direct and indirect) are not
required to make any distribution of or designate me as author of any design,
computer program or related documentation, or other work of authorship assigned
or licensed in sections 4 or 5.
8. RELIEF AND EXPENSES.
I acknowledge that any violation of this Agreement by me will
cause irreparable injury to Active Voice, and Active Voice shall be entitled to
extraordinary relief in court, including, but not limited to, temporary
restraining orders, preliminary injunctions, and permanent injunctions, without
the necessity of posting bond or security. If court proceedings are required to
enforce any provision or to remedy any
7
breach of this Agreement, the prevailing party shall be entitled to an award
of reasonable and necessary expenses of litigation, including reasonable
attorneys' fees.
9. ENFORCEABILITY.
I agree that this Agreement shall be governed for all purposes by
the laws of the State of Washington as such law applies to contracts to be
performed within Washington by residents of Washington and that venue for any
action arising out of this Agreement shall be properly laid in King County,
Washington, or in Federal District Court for the Western District of Washington.
If any provision of this Agreement is void or is so declared, such provision
shall be severed from this Agreement, which shall otherwise remain in full force
and effect.
10. NONSOLICITATION.
While employed at active Voice and for a period of one (1) year
from the termination of my employment I will not induce or attempt to influence
directly or indirectly any employee of Active Voice to terminate his/her
employment with Active Voice or to work for me or any other person or entity.
11. ENTIRE AGREEMENT.
With respect to the subject matter hereof, this is my entire
agreement with Active Voice, and it supersedes (to the extent enforceable) all
previous oral or written communications, representations, understandings,
undertakings, or agreements by or with Active Voice. The term Active Voice as
used in this Agreement, includes any entity owned or controlled, directly or
indirectly, by Active Voice.
12. ACKNOWLEDGMENT OF RECEIPT.
I acknowledge receipt of a copy of this Agreement. Understood and
agreed to by:
Xxx Xxxx
Employee's Full Name (please print)
/s/ Xxx Xxxx 5/18/99
Employee's Signature Date
Xxxxx X. Xxxxx
Corporate officer (please print)
/s/ Xxxxx X. Xxxxx 5/18/99
Signature Date
(If you have entered "none" in section 3, do not fill in this section.)
The following are all the non-competition or non-disclosure agreements which
may remain currently binding between myself and my former employers.
8
Former Employer Dates of Employment
IBM Corporation_________________ 10/83 to 6/2/99
______________________________ __________to___________
______________________________ __________to___________
Signed:/s/ Xxx Xxxx
Employee's Full Name
5/18/99
Date
(If you have entered "none" in section 5, do not fill in this section.)
The following are Developments not covered by section 4, in which I have any
right, title or interest, and which were previously conceived or written either
wholly or in part by me, but neither published nor filed in any patent office,
whether or not previously identified to Active Voice.
Description of Documents (if applicable):
Title on Document Date on Document Name of Witness on
Document
Coursework & Lecture ________________ ____________________
Materials for Executive
MBA Programs ________________ ____________________
_______________________ ________________ ____________________
Signed: /s/ Xxx Xxxx
Employee's Full Name
--------------------
Date
9
