EXHIBIT 10.7
Internet Extra Corporation
000 Xxxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
February 19, 1999
Xx. Xxxxxxx X. Xxxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Dear Xxxxxxx:
I am very pleased to offer you the position of Chairman & Chief Executive
Officer with Internet Extra Corporation (the "Company") commencing as of the
date hereof. We at the Company are delighted that you have decided to join our
enterprise and help MediaPlex become a success. I would like to take this
opportunity to set out the terms of your employment more fully:
1. Effectiveness. This agreement (this "Agreement") is being entered into
effective as of the date hereof (the "Effective Date").
2. Employment.
(a) Duties. The Company shall employ you, and you shall initially
serve as, the Company's Chairman & Chief Executive Officer, subject at all times
and in all cases and respects to the ultimate control and direction of the board
of directors of the Company. In such capacity, you shall perform all such
services, accept all such responsibilities and discharge all such duties and
responsibilities as are consistent and commensurate with your position and as
may be assigned to or required of you from time to time by the Company. You
shall perform such services, accept such responsibilities and discharge such
duties within the policies and guidelines established from time to time by the
Company, subject at all times and in all cases and respects to the ultimate
control and direction of the Company. The Company shall have the right to review
and revise your services, responsibilities and duties at any time and from time
to time during the Term (as defined below) in any and all respects, provided
--------
that any revised services, responsibilities and duties, taken as a whole,
continue to reflect your knowledge, skill and experience. Such services shall be
primarily performed in the Company's offices in San Francisco, California,
although you may be required to travel to other locations as necessary and
consistent with your position with the Company.
(b) Exclusive Employment. At all times during the Term, you shall
devote all of your business time, attention and energies to the performance,
fulfillment and satisfaction of your duties and responsibilities to the Company
under this Agreement, and shall not undertake or be engaged in any other
activities, whether or not pursued for gain, profit or other pecuniary
advantage, which could impair your ability to perform, fulfill and satisfy your
duties and responsibilities to the Company under this Agreement, in any case
without the prior written consent of the Company which
consent will not be unreasonably withheld. Notwithstanding the foregoing
provision of this Section, any work that you perform for the companies listed on
Schedule A attached hereto (the "Exempted Companies") or any such Exempted
Company's subsidiaries or affiliates pursuant to any agreement with any Exempted
Company or any of Exempted Company's subsidiaries or affiliates, oral or
written, which is fully disclosed to the Company's Board of Directors, shall not
be deemed a conflict of interest, impropriety or breach of corporate duty with
the Company and any work that you perform for any Exempted Company or any of
Exempted Company's subsidiaries or affiliates from time to time, pursuant to any
agreement, oral or written, which is fully disclosed to the Company's Board of
Directors, whether as employee, officer, director or consultant to any Exempted
Company or any of Exempted Company's subsidiaries or affiliates shall not be
deemed a conflict of interest, impropriety or breach of corporate duty with the
Company.
(c) Affirmation of Fiduciary Responsibilities. At all times during
the Term, you shall perform, satisfy, fulfill and carry out your duties and
responsibilities to the Company under this Agreement with fidelity and loyalty,
in a diligent manner, to the best of your ability, experience and talent, and in
a manner consistent with your fiduciary responsibilities to the Company.
3. Compensation.
(a) Base Salary and Incentive Compensation. Your annual base salary
during the Term shall be paid at the annual rate of $250,000 for the remainder
of calendar year 1999, $275,000 for the calendar year 2000 and $300,000 for the
calendar year 2001 ("Base Salary"), payable in accordance with the Company's
standard payroll practices. Unless otherwise specified herein, the Company shall
make such deductions, withholdings and other payments from all sums payable
pursuant to this Agreement which you request or that are required by law for
taxes and other charges.
(b) Stock Options. You shall receive, as of the Effective Date, an
option (the "New Stock Option") to acquire 1,750,000 shares of Common Stock of
the Company (the "Option Shares"), at an exercise price equal to $0.50 per
share. The New Stock Option shall be immediately exercisable with respect to all
of the Option Shares, and the Company shall have the right to repurchase the
Option Shares at the exercise price in the event your employment is terminated.
The Company's right of repurchase shall expire with respect to one-sixth (1/6th)
of the Option Shares on the six month anniversary of the Vesting Commencement
Date (as set forth in your stock option agreement), and with respect to an
additional 1/36th of the Option Shares on the same day of each month during the
thirty (30) months thereafter or until your employment is earlier terminated.
All other terms governing such options shall be set out in the Company's
standard option agreement and stock option plan.
(c) Benefits Plans. You will be entitled to participate in or receive
benefits under the Company's employee benefit plans and policies in effect from
time to time in which you are eligible to participate, subject to the applicable
terms and conditions of the particular benefit plan. The Company may change,
amend, modify or terminate to the extent legally allowable, any benefit plan
from time to time and without prior notice. To the extent benefits provided by
the Company are affected by seniority (i.e., length of service), you shall be
credited for time you served at the
-2-
Company, to the fullest extent permitted by law and consistent with the
Company's current benefit plans.
(d) Expenses. You shall be entitled to prompt reimbursement by the
Company for all reasonable ordinary and necessary travel, entertainment, and
other expenses incurred by you during the Term (in accordance with the policies
and procedures established by the Company for its senior executive officers) in
the performance of your duties and responsibilities under this Agreement,
provided, that you shall properly account for such expenses in accordance with
--------
Company policies and procedures. Any necessary air travel shall be coach class
domestically and business class internationally.
(e) Vacation and Holidays. You shall be entitled to four (4) weeks
paid vacation and Company holidays in accordance with the Company's policies in
effect from time to time for its senior executive officers.
(f) Bonus. You shall be eligible to participate in any management
bonus plan or similar incentive compensation program adopted by the Company on
terms comparable to other senior officers of the Company.
(g) Other Benefits. During the Term the Company shall pay you the
following: (i) a monthly automobile allowance of Five Hundred Dollars ($500.00)
and (ii) free parking at corporate premises for Raifman, or if no such premises
shall exist, then a monthly parking allowance up to a maximum of Two Hundred
Dollars ($200.00).
4. Term; Termination; Severance Payments.
(a) Term. Unless otherwise terminated as hereinafter provided, the
term of your employment under this Agreement (the "Term") shall commence upon
the Effective Date and shall continue until and terminate on the date that is
the three year anniversary of the Effective Date. Upon expiration of the Term,
you shall be an "at-will" employee of the Company, subject to such policies,
benefits and practices and procedures that are then applicable with respect to
an at-will employee of the Company (the "IEC Policies"). Notwithstanding the
foregoing, the Company may terminate your employment with the Company during the
Term for Cause (as defined below).
(b) Cause. As used in this Agreement, "Cause" shall mean (i)
-----
conviction of a felony or a crime involving moral turpitude causing material
harm to the standing and reputation of the Company or (ii) any habitual neglect
or willful misconduct in the performance of Purchaser's duties to the Company
where such habitual negligence or willful misconduct has resulted in substantial
and material damage to the Company or its subsidiaries, in each as determined in
good faith by the Board of Directors of the Company.
(c) Termination and Severance Benefits.
(i) Termination for Cause or Resignation. If your employment is
terminated for Cause or if you resign your employment voluntarily, no other
compensation or
-3-
payments will be provided to you for any periods following the date when such
termination of employment is effective.
(ii) Termination without Cause; Constructive Termination. If
your employment is terminated by the Company without Cause, or if you are
Constructively Terminated (as defined below), you will be entitled to receive
the severance payments provided for in Section 4(c)(iv) below (if any) upon such
termination. No other compensation or payments will be made pursuant to this
Agreement other than those to which you are entitled through your last day of
active service or under the applicable IEC Policies and benefit plans. For
purposes of this Section 4(c)(ii), the term "Constructively Terminated" shall
mean your voluntary termination, upon 30 days prior written notice to the
Company, following: (A) a material reduction or change in job duties,
responsibilities and requirements inconsistent with your position with the
Company and prior duties, responsibilities and requirements (B) any reductions
of your base compensation; or (C) your refusal to relocate to facility or
location more than 25 miles from the Company's current location.
(iii) Death or Disability.
(A) Your employment shall terminate in the event of your
death.
(B) The Company may terminate your employment for
Disability by giving you 30 days' advance notice in writing. For all purposes
under this Agreement, "Disability" shall mean that you, at the time notice is
given, have been unable to substantially perform your duties under this
Agreement for a period of not less than six (6) consecutive months as the result
of your incapacity due to physical or mental illness. In the event that you
resume the performance of substantially all of your duties hereunder before the
termination of your employment under this subparagraph (B) becomes effective,
the notice of termination shall automatically be deemed to have been revoked.
(C) No compensation or benefits will be paid or provided to
you under this Agreement on account of termination for death or Disability, or
for periods following the date when such a termination of employment is
effective. Your rights under the benefit plans of the Company in the event of
your death or Disability shall be determined under the provisions of those
plans.
(iv) Severance Payments. During the Term, in the event your
employment with the Company is terminated without cause or if you are
Constructively Terminated, the Company's sole obligation to you will be to (a)
pay you a lump sum severance payment ("Severance Payment") in the amount equal
to (I) 2/26 of your effective Base Salary for the year in which you are so
terminated for each complete month worked by you commencing April 1, 1998;
provided, however, the Severance Payment shall, in no case, exceed one year of
-------- -------
your Base Salary for such year; and (II) any benefits set forth in Section 3(b)
through (g) of this Agreement owing to you prior to the Termination Date and (c)
permit you to participate under the Company's Benefits Plans for up to one year
following your termination with the Company.
-4-
5. Assignment.
(a) Successors and Assigns. Any of the Company's affiliates may
assume the liabilities and obligations, and succeed to the rights and interests,
of the Company under this Agreement at any time and without limitation. In
addition to the foregoing, any successor to the Company (whether direct or
indirect and whether by purchase, lease, merger, consolidation, liquidation or
otherwise), or to all or substantially all of the Company's business and/or
assets, shall assume the obligations under this Agreement and agree expressly to
perform the obligations under this Agreement in the same manner and to the same
extent as the Company would be required to perform such obligations in the
absence of such succession. For all purposes of and under this Agreement, the
term "Company" shall include any successor to the Company's business and/or
assets which executes and delivers the assumption agreement required by this
Section 5, or which otherwise becomes bound by the terms of this Agreement by
operation of law. Any such assumption and/or succession under this Section 5
shall not be deemed to be a termination of your employment hereunder.
(b) The terms of this Agreement and all of your rights hereunder
shall inure to the benefit of, and be enforceable by, your personal or legal
representatives, executors, administrators, successor, heirs, distributees,
devisees or legatees.
6. Covenant Not to Compete.
(a) Definitions. As used in this Agreement, the terms:
(i) "Restricted Business" shall mean any business related to (i)
advertising, marketing, media placement or banner serving, (ii) enterprise
software applications and/or enterprise integration relating to online or
traditional (including, without limitation, television, print, direct mail,
radio or the like) advertising, marketing, media placement or banner serving or
(iii) the transacting of business, or shopping, purchasing, or subscribing to or
registering for services, products, programs or information, or downloading or
obtaining software programs or information; or participating in other similar
types of transactions, in each case which specifically arise from banners served
by the Company.
(ii) "Restricted Territory" shall mean the larger of: (A) all of
the countries of the world or (B) if (A) is found unenforceable, the countries
in which the Company's products are available during the term of the non-compete
obligations specified in this Section 6.
(b) Non-Compete. In consideration of: (i) the several agreements made
by the Company with you in and pursuant to the Reorganization Agreement, (ii)
the issuance by the Company to you of the New Stock Option and (iii) the
consideration payable to you hereunder, you agree that until: (A) the one (1)
year anniversary of the Effective Date or (B) in the event that the period set
forth in clause (A) is determined to be unenforceable by a court of competent
jurisdiction, the maximum period allowable, you will not, directly or
indirectly, engage in (whether as an officer, employee, consultant, director,
proprietor, partner, consultant or otherwise), or have any ownership interest
in, or participate in the financing, operation, management or control of, any
person, firm,
-5-
corporation or business that engages in a Restricted Business in a Restricted
Territory. It is agreed that ownership of no more than five percent (5%) of the
outstanding voting stock of a publicly-traded or privately-held corporation
shall not constitute a violation of this section. It is further agreed that the
foregoing consideration is not intended to constitute liquidated damages for a
violation of this section.
(c) Non-Solicit. You agree that until the expiration of the non-
compete obligations specified above in subsection (b), you shall not:
(i) take any action to, or do anything reasonably intended to,
divert business from the Company, or any of its affiliates, or influence or
attempt to influence any retailer, dealer, vendor, supplier, customer or
potential customer of the Company, or any of its affiliates, in each case as
existing on the date of your termination (the "Termination Date"), to cease
doing business with the Company, or any of its affiliates, as the case may be,
or to alter its business relationship with the Company, or any of its
affiliates, in each case as existing on the Termination Date; or
(ii) recruit, attempt to hire, solicit, or assist others in
recruiting or hiring, any person who is an employee of the Company, or any of
its affiliates, in each case as of the Termination Date, or induce or attempt to
induce any such employee to terminate his or her employment with the Company, or
any of its affiliates.
7. REMEDIES. YOU HEREBY RECOGNIZE AND ACKNOWLEDGE THAT A MATERIAL
VIOLATION OF THE TERMS AND PROVISIONS OF THIS SECTION 7 WOULD CAUSE IRREPARABLE
INJURY TO THE COMPANY, OR ONE OR MORE OF ITS AFFILIATES, AS THE CASE MAY BE, FOR
WHICH THE COMPANY, OR ANY OF ITS AFFILIATES, WOULD HAVE NO ADEQUATE REMEDY AT
LAW. ACCORDINGLY, IN THE EVENT THAT YOU SHALL FAIL TO MATERIALLY COMPLY WITH THE
TERMS AND PROVISIONS OF THIS SECTION 7 IN ANY RESPECT, AND YOU HAVE BEEN GIVEN
NOTICE OF SUCH VIOLATION AND AN OPPORTUNITY TO CURE SUCH VIOLATION, THE COMPANY,
OR ANY OF ITS AFFILIATES, SHALL BE ENTITLED TO PRELIMINARY AND OTHER INJUNCTIVE
RELIEF AND TO SPECIFIC PERFORMANCE OF THE TERMS AND PROVISIONS HEREOF. IN
FURTHERANCE AND NOT IN LIMITATION OF THE FOREGOING, YOU HEREBY WAIVE ANY CLAIM
OR DEFENSE RELATING TO ANY VIOLATION OR BREACH BY YOU OF THE TERMS AND
PROVISIONS OF THIS SECTION 7 THAT THE COMPANY, OR ANY OF ITS AFFILIATES, HAS AN
ADEQUATE REMEDY AT LAW OR THAT MONEY DAMAGES WOULD PROVIDE AN ADEQUATE REMEDY
FOR SUCH VIOLATION OR BREACH.
8. Severability. The parties intend that the covenants contained in the
preceding paragraphs shall be construed as a series of separate covenants, one
for each county, city, state and other political subdivision of each country in
the Restricted Territory. Except for geographic coverage, each separate covenant
shall be deemed identical in terms to the covenant contained in the preceding
paragraphs. If, in any judicial proceeding, a court shall refuse to enforce any
of the separate covenants (or any part thereof) deemed included in said
paragraphs, then such
-6-
unenforceable covenant (or such part) shall be deemed eliminated from this
Agreement for the purpose of those proceedings to the extent necessary to permit
the remaining separate covenants (or portions thereof) to be enforced by such
court. It is the intent of the parties that the covenants set forth herein be
enforced to the maximum degree permitted by applicable law.
9. Entire Agreement. This Agreement and the Confidential Information and
Invention Assignment Agreement set forth the entire agreement and understanding
of the parties with respect to the subject matter hereof and thereof, and
supersede any other written or oral negotiations, agreements, understandings,
representations or practices concerning such subject matter hereof (including
without limitation any employment agreement or offer letter extended by the
Company at any time). In the event of any conflict between the provisions hereof
and the provisions of the Confidential Information and Invention Assignment
Agreement, the provisions hereof shall control.
10. Notices. Any notice, report or other communication required or
permitted to be given hereunder shall be in writing and shall be deemed given on
the date of delivery if delivered, or five days after mailing, if mailed first-
class mail, postage prepaid, return receipt requested, or delivered to a
nationwide overnight delivery service charges prepaid, return receipt requested,
to the following addresses:
(a) If to the Company: Internet Extra Corporation
000 Xxxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: General Counsel
(b) If to you: To the address for notice set forth on the
signature page hereto or to such other
address as any party hereto may hereafter
designate by notice given as herein provided.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of California without giving effect to principles
regarding conflict of laws. Any action or proceeding brought by any party
against another arising out of or related to this Agreement shall be brought in
a state or federal court of competent subject matter jurisdiction located within
San Francisco County in the State of California, and each of the parties to this
Agreement consents to the personal jurisdiction of those courts.
12. Arbitration. In the event of any dispute or claim relating to or
arising out of our employment relationship, you and the Company agree that all
such disputes shall be fully and finally resolved by binding arbitration
conducted by the American Arbitration Association in San Francisco, California.
HOWEVER, we agree that this arbitration provision shall not apply to any
disputes or claims relating to or arising out of the misuse or misappropriation
of the Company's trade secrets or proprietary information.
-7-
13. Amendments. This Agreement shall not be changed or modified in whole
or in part except by an instrument in writing signed by the Company and you nor
shall any covenant or provision of this Agreement be waived except by an
instrument in writing signed by the party against whom enforcement of such
waiver is sought.
14. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original, but all of which shall together constitute
one and the same agreement.
15. Effect of Headings. The section headings herein are for convenience
only and shall not effect the construction or interpretation of the Agreement.
16. Delays or Omissions. No delay or omission to exercise any right, power
or remedy accruing to either party upon any breach or default of the other party
hereto shall impair any such right, power or remedy of such non-defaulting
party, nor shall it be construed to be a waiver of any such breach or default or
an acquiescence therein, or of any similar breach or default thereafter
occurring; nor shall any waiver of a breach or default be deemed to be a waiver
of any other breach or default.
17. Rules of Construction. You and the Company each acknowledge that they
have been represented by, or had an opportunity to consult with, competent
counsel during the negotiation and execution of this Agreement and therefore,
waive the application of any law, regulation, holding or rule of construction
providing that ambiguities in any agreement will be construed against the party
drafting such agreement.
[The remainder of this page is intentionally left blank.]
-8-
To indicate your acceptance of the terms of this Agreement, please sign and
date this letter in the space provided below and return it to me. A duplicate
original is enclosed for your records. This letter, along with the agreement
relating to proprietary rights between you and the Company, set forth the terms
of your employment with the Company and supersede any prior representations or
agreements, whether written or oral.
We look forward to working with you at Internet Extra Corporation.
Sincerely,
Internet Extra Corporation
/s/ Xxx Xxxxx Xxxxxxx
-----------------------------
Xxx Xxxxx Xxxxxxx
President, Founder & Director
ACCEPTED AND AGREED TO THIS
_____ DAY OF FEBRUARY, 1999.
/s/ Xxxxxxx X. Xxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxx
Address for notices:
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Enclosures: Duplicate Original Letter
Option Agreement
Confidential Information and Invention Assignment Agreement
-9-
SCHEDULE A
Schedule of Exempted Companies
------------------------------
1. Raifman & Xxxxxxx LLP
2. PointBreak Ventures, LLC (including, without limitation, the existing
portfolio companies of PointBreak Ventures, LLC)
INTERNET EXTRA CORPORATION
CONFIDENTIAL INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
As a condition of my employment with Internet Extra Corporation, its
subsidiaries, affiliates, successors or assigns (collectively, the "Company"),
and in consideration of my employment with the Company and my receipt of the
compensation now and hereafter paid to me by Company. I agree to the following:
1. Confidential Information.
------------------------
(a) Company Information. I agree at all times during the term of my
-------------------
employment and thereafter, to hold in strictest confidence, and not to use,
except for the benefit of the Company, or to disclose to any person, firm or
corporation without written authorization of the Board of Directors of the
Company, any Confidential Information of the Company. I understand that
"Confidential Information" means any Company proprietary information, technical
data, trade secrets or know-how, including, but not limited to, research,
product plans, products, services, customer, vendor and contractor lists and
customers (including, but not limited to, customers of the Company on whom I
called or with whom I became acquainted during the term of my employment),
markets, software, developments, inventions, processes, formulas, technology,
designs, drawings, engineering, hardware configuration information, marketing,
finances or other business information disclosed to me by the Company either
directly or indirectly in writing, orally or by drawings or observation of parts
or equipment. I further understand that Confidential Information does not
include any of the foregoing items which has become publicly known and made
generally available through no wrongful act of mine or of others who were under
confidentiality obligations as to the item or items involved.
(b) Former Employer Information. I agree that I will not, during my
---------------------------
employment with the Company, improperly use or disclose any proprietary
information or trade secrets of any former or concurrent employer or other
person or entity and that I will not bring into the premises of the Company any
unpublished document or proprietary information belonging to any such employer,
person or entity unless consented to in writing by such employer, person or
entity.
(c) Third Party Information. I recognize that the Company has
-----------------------
received and in the future will receive from third parties their confidential or
proprietary information subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. I agree to hold all such confidential or proprietary information in
the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out my work for the
Company consistent with the Company's agreement with such third party.
2. Inventions.
----------
(a) Inventions Retained and Licensed. I have attached hereto, as
--------------------------------
Exhibit A, a list describing all inventions, original works of authorship,
developments, improvements, and trade secrets which were made by me prior to my
employment with the Company (collectively referred to as "Prior Inventions"),
which belong to me, which relate to the Company's proposed business, products or
research and development, and which are not assigned to the Company hereunder;
or, if no such list is attached, I represent that there are no such Prior
Inventions. If in the course of my employment with the Company, I incorporate
into a Company product, process or machine a Prior Invention owned by me or in
which I have an interest, the Company is hereby granted and shall have a
nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make,
have made, modify, use and sell such Prior Invention as part of or in connection
with such product, process or machine.
(b) Assignment of Inventions. I agree that I will promptly make full
------------------------
written disclosure to the Company, will hold in trust for the sole right and
benefit of the Company, and hereby assign to the Company, or its designee, all
my right, title, and interest in and to any and all inventions, original works
of authorship, developments, concepts, improvements or trade secrets, whether or
not patentable or registrable under copyright or similar laws, which I may
solely or jointly conceive or develop or reduce to practice, or cause to be
conceived or developed or reduced to practice, during the period of time I am in
the employ of the Company (collectively referred to as "Inventions"), except as
provided in Section 2(f) below. I further acknowledge that all original works of
authorship which are made by me (solely or jointly with others) within the scope
of and during the period of my employment with the Company and which are
protectable by copyright are "works made for hire," as that term is defined in
the United States Copyright Act.
(c) Inventions Assigned to the United States. I agree to assign to
----------------------------------------
the United States government all my right, title, and interest in and to any and
all Inventions whenever such full title is required to be in the United States
by a contract between the Company and the United States or any of its agencies.
(d) Maintenance of Records. I agree to keep and maintain adequate
----------------------
and current written records of all Inventions made by me (solely or jointly with
others) during the term of my employment with the Company. The records will be
in the form of notes, sketches, drawings, and any other format that may be
specified by the Company. The records will be available to and remain the sole
property of the Company at all times.
(e) Patent and Copyright Registrations. I agree to assist the
----------------------------------
Company, or its designee, at the Company's expense, in every proper way to
secure the Company's rights in the Inventions and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto in any and
all countries, including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all applications,
specifications, oaths, assignments and all other instruments which the Company
shall deem necessary in order to apply for and obtain such rights and in order
to assign and convey to the Company, its successors, assigns and nominees the
sole and exclusive rights, title and interest in and to such Inventions, and any
copyrights, patents, mask work rights or other intellectual property rights
relating thereto. I further agree that my
obligation to execute or cause to be executed, when it is in my power to do so,
any such instrument or papers shall continue after the termination of this
Agreement. If the Company is unable because of my mental or physical incapacity
or for any other reason to secure my signature to apply for or to pursue any
application for any United States or foreign patents or copyright registrations
covering Inventions or original works of authorship assigned to the Company as
above, then I hereby irrevocably designate and appoint the Company and its duly
authorized officers and agents as my agent and attorney in fact, to act for and
in my behalf and stead to execute and file any such applications and to do all
other lawfully permitted acts to further the prosecution and issuance of letters
patent or copyright registrations thereon with the same legal force and effect
as if executed by me.
(f) Exception to Assignments. I understand that the provisions of
------------------------
this Agreement requiring assignment of Inventions to the Company do not apply to
any invention which qualifies fully under the provisions of California Labor
Code Section 2870 (attached hereto as Exhibit B). I will advise the Company
promptly in writing of any inventions that I believe meet the criteria in
California Labor Code Section 2870 and not otherwise disclosed on Exhibit A.
3. Conflicting Employment. I agree that, during the term of my
----------------------
employment with the Company, I will not engage in any other employment,
occupation, consulting other business activity directly related to the business
in which the Company and/or its customers are now involved or becomes involved
during the term of my employment, nor will I engage in any other activities that
conflict with my obligations to the Company.
4. At Will Employment. I understand that my employment with the Company
------------------
is "at will" and is for no specified term. As a result, I understand that the
Company can terminate my employment at any time and that, similarly, I am free
to terminate my employment with the Company at any time.
5. Returning Company Documents. I agree that, at the time of leaving the
---------------------------
employ of the Company, I will deliver to the Company (and will not keep in my
possession, recreate or deliver to anyone else) any and all devices, records,
data, notes, reports, proposals, lists, correspondence, specifications,
drawings, blueprints, sketches, materials, equipment, other documents or
property, or reproductions of any aforementioned items developed by me pursuant
to my employment with the Company or otherwise belonging to the Company, its
successors or assigns. In the event of the termination of my employment, I agree
to sign and deliver the "Termination Certification" attached hereto as Exhibit
C.
6. Notification to New Employer. In the event that I leave the employ of
----------------------------
the Company, I hereby grant consent to notification by the Company to my new
employer about my rights and obligations under this Agreement.
7. Solicitation of Employees. I agree that for a period of twelve (12)
-------------------------
months immediately following the termination of my relationship with the Company
for any reason, whether with or without cause, I shall not either directly or
indirectly solicit, induce, recruit or encourage any of the Company's employees
to leave their employment, or take away such employees, or attempt to
solicit, induce, recruit, encourage or take away employees of the Company,
either for myself or for any other person or entity.
8. Conflict of Interest Guidelines. I agree to diligently adhere to the
-------------------------------
Conflict of Interest Guidelines attached as Exhibit D hereto.
9. Representations. I agree to execute any proper oath or verify any
---------------
proper document required to carry out the terms of this Agreement. I represent
that my performance of all the terms of this Agreement will not breach any
agreement to keep in confidence proprietary information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree I will not enter into, any oral or written agreement in
conflict herewith.
10. Arbitration and Equitable Relief.
--------------------------------
(a) Arbitration. Except as provided in Section 10(b) below, I agree
-----------
that any dispute or controversy arising out of or relating to any
interpretation, construction, performance or breach of this Agreement, shall be
settled by arbitration to be held in San Francisco County, California, in
accordance with the rules then in effect of the American Arbitration
Association. The arbitrator may grant injunctions or other relief in such
dispute or controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court having jurisdiction. The
Company and I shall each pay one-half of the costs and expenses of such
arbitration, and each of us shall separately pay our counsel fees and expenses.
(b) Equitable Remedies. I agree that it would be impossible or
------------------
inadequate to measure and calculate the Company's damages from any breach of the
covenants set forth in Sections 1, 2, 3, and 5 herein. Accordingly, I agree that
if I breach any of such Sections, the Company will have available, in addition
to any other right or remedy available, the right to obtain an injunction from a
court of competent jurisdiction restraining such breach or threatened breach and
to specific performance of any such provision of this Agreement. I further agree
that no bond or other security shall be required in obtaining, such equitable
relief and I hereby consent to the issuance of such injunction and to the
ordering of specific performance.
11. General Provisions.
------------------
(a) Governing Law; Consent to Personal Jurisdiction. This Agreement
-----------------------------------------------
will be governed by the laws of the State of California. I hereby expressly
consent to the personal jurisdiction of the state and federal courts located in
California for any lawsuit filed there against me by the Company arising from or
relating to this Agreement.
(b) Entire Agreement. This Agreement sets forth the entire agreement
----------------
and understanding between the Company and me relating to the subject matter
herein and merges all prior discussions between us. No modification for
amendment to this Agreement, nor any waiver of any rights under this agreement,
will be effective unless in writing signed by the party to be charged.
Any subsequent change or changes in my duties, salary or compensation will not
affect the validity or scope of this Agreement.
(c) Severability. If one or more of the provisions in this Agreement
------------
are deemed void by law, then the remaining provisions will continue in full
force and effect.
(d) Successors and Assigns. This Agreement will be binding upon my
----------------------
heirs, executors, administrators and other legal representatives and will be for
the benefit of the Company, its successors, and its assigns.
INTERNET EXTRA CORPORATION
By: ______________________________
Name
Title
AGREED TO AND ACCEPTED:
Signature
Date:
Witness
EXHIBIT A
---------
LIST OF PRIOR INVENTIONS
AND ORIGINAL WORKS OF AUTHORSHIP
Identifying Number or Brief
Title Date Description
----- ---- -----------
______ No inventions or improvements
______ Additional Sheets Attached
Signature of Employee:
Print Name of Employee:
Date:_______________________
EXHIBIT B
---------
CALIFORNIA LABOR CODE SECTION 2870
EMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS
"(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer.
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable."
EXHIBIT C
---------
INTERNET EXTRA CORPORATION
TERMINATION CERTIFICATION
This is to certify that I do not have in my possession, nor have I failed
to return, any devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, materials,
equipment, other documents or property, or reproductions of any aforementioned
items belonging to Internet Extra Corporation, its subsidiaries, affiliates,
successors or assigns (collectively, the "Company").
I further certify that I have complied with all the terms of the Company's
Employment, Confidential Information and Invention Assignment Agreement signed
by me, including the reporting of any inventions and original works of
authorship (as defined therein), conceived or made by me (solely or jointly with
others) covered by that agreement.
I further agree that, in compliance with the Employment, Confidential
Information and Invention Assignment Agreement, I will preserve as confidential
all trade secrets, confidential knowledge, data or other proprietary information
relating to products, processes, know-how, designs, formulas, developmental or
experimental work, computer programs, data bases, other original works of
authorship, customer lists, business plans, financial information or other
subject matter pertaining to any business of the Company or any of its
employees, clients, consultants or licensees.
I further agree that for twelve (12) months from this date, I will not hire
any employees of the Company and I will not directly or indirectly solicit,
induce, recruit or encourage any of the Company's employees to leave their
employment, or take away such employees, or attempt to solicit, induce, recruit,
encourage or take away any employees of the Company, either for myself or for
any other person or entity.
Date:
_____________________________________
(Employee's Signature)
_____________________________________
(Type/Print Employee's Name)
EXHIBIT D
---------
INTERNET EXTRA CORPORATION
CONFLICT OF INTEREST GUIDELINES
It is the policy of Internet Extra Corporation, its subsidiaries,
affiliates, successors or assigns (collectively, the "Company") to conduct its
affairs in strict compliance with the letter and spirit of the law and to adhere
to the highest principles of business ethics. Accordingly, all officers,
employees and independent contractors must avoid activities which are in
conflict, or give the appearance of being in conflict, with these principles and
with the interests of the Company. The following are potentially compromising
situations which must be avoided. Any exceptions must be reported to the
President and written approval for continuation must be obtained.
1. Revealing confidential information to outsiders or misusing
confidential information. Unauthorized divulging of information is a violation
of this policy whether or not for personal gain and whether or not harm to the
Company is intended. (The Employment, Confidential Information and Invention
Assignment Agreement elaborates on this principle and is a binding agreement.)
2. Accepting or offering substantial gifts, excessive entertainment,
favors or payments may be deemed to constitute undue influence or otherwise be
improper or embarrassing to the Company.
3. Initiating or approving personnel actions affecting reward or
punishment of employees or applicants where there is a family relationship or is
or appears to be a personal or social involvement.
4. Initiating or approving any form of personal or social harassment of
employees.
5. Investing or holding outside directorships in suppliers, customers or
competing companies, including financial speculation, where such investment or
directorship might influence in any manner a decision or course of action of the
Company.
6. Borrowing from or lending to employees, customers or suppliers.
7. Acquiring a real estate interest adverse to the Company.
8. Improperly using or disclosing to the Company any proprietary
information or trade secrets of any former or concurrent employer or other
person or entity with whom obligations of confidentiality exist.
9. Unlawfully discussing prices, costs, customers, sales or markets with
competing companies or their employees.
10. Making any unlawful agreements with distributors with respect to
prices.
11. Improperly using or authorizing the use of any inventions which are
the subject of patent claims of any other person or entity.
12. Engaging in any conduct which is not in the best interest of the
Company.
Each officer, employee and independent contractor must take every necessary
action to ensure compliance with these guidelines and to bring problem areas to
the attention of higher management for review. Violations of this conflict of
interest policy may result in discharge without warning.
