EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of the 17th day of
April, 2000, by and among Xxxx Xxxxx (the "Executive"), XxxxXxxxx.xxx, Inc.
("InfoSpace"), a Delaware corporation and Saraide Inc., a Delaware corporation
("Saraide") (InfoSpace and Saraide are referred to collectively as "Employer").
R E C I T A L S
A. InfoSpace has acquired a controlling interest in Saraide. InfoSpace
and Saraide desire that Executive join them in various capacities, including
Executive's joining the board of directors of and being appointed Chief
Executive Officer and Vice Chairman of InfoSpace, and joining the board of
directors of and being appointed President and Chief Executive Officer of
Saraide.
B. The parties contemplate that, upon joining InfoSpace, Executive will
spend a majority of his time during the first six months building the business
of Saraide which will acquire and be combined with the business, assets and
technology of the InfoSpace Wireless Division.
C. Executive has extensive experience in the telecommunications industry,
and is willing to leave his present position to join InfoSpace and Saraide on
the terms set forth in this Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Term. Executive's employment under this Agreement shall commence on
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the 31/st/ day after the closing of the joint venture between Xxxx Atlantic
Corp. and Vodafone Airtouch PLC, or earlier upon notification by Executive to
Employer that he is free to commence employment with Employer (the "Effective
Date"). If Executive does not commence employment with the Employer on or before
July 1, 2000, then this Agreement is null and void and of no effect. The
employment relationship between Executive and the Employer shall be governed by
the general employment policies and procedures of InfoSpace, except that when
the terms of this Agreement differ from or are in conflict with InfoSpace's
general employment policies or procedures, this Agreement shall control.
2. Duties.
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(a) InfoSpace. Subject to terms set forth herein, InfoSpace agrees to
employ Executive in the position of Chief Executive Officer and Vice Chairman,
and Executive hereby accepts such employment effective as of the Effective Date.
Executive shall perform such duties as are customarily associated with his
position, subject to direction of InfoSpace's Board of Directors (the "InfoSpace
Board"). Executive shall be elected a member of the Board of Directors of
InfoSpace on the Effective Date. Upon Executive becoming a member of the
InfoSpace Board, Executive shall be appointed a member of the InfoSpace
Executive Committee.
1.
InfoSpace shall use its best efforts to cause Executive to be elected to the
InfoSpace Board for as long as Executive is employed by InfoSpace.
(b) Saraide. Subject to terms set forth herein, Saraide agrees to
employ Executive in the position of President and Chief Executive Officer, and
Executive hereby accepts such employment effective as of the Effective Date.
Executive shall perform such duties as are customarily associated with his
position, subject to direction of Saraide's Board of Directors (the "Saraide
Board"). Executive shall be elected a member of the Board of Directors of
Saraide on the Effective Date. Saraide shall use its best efforts to cause
Executive to be elected to the Saraide Board for as long as Executive is
employed by Saraide.
(c) Full-Time Commitment. During his employment with the Employer,
Executive will devote his best efforts and substantially all of his business
time and attention (except for vacation periods and reasonable periods of
illness or other incapacity permitted by InfoSpace's general employment
policies) to the business of the Employer. Notwithstanding the foregoing,
Employer has been advised that Executive is a member of the respective boards of
directors of Xxxxxxx Xxxxxx Corporation, Cisco Systems, Inc. and Vodafone
Airtouch PLC. Employer agrees that Executive may at any time serve as a member
of up to four boards of directors of public companies other than InfoSpace and
Saraide, and agrees that Executive may continue to hold such directorships and
perform all duties associated therewith, including attendance at board and
committee meetings. Executive agrees that, during his employment with the
Employer, he shall not serve as a member of more than four outside boards of
directors without the prior consent of the InfoSpace Board. Executive shall
maintain his residence in the San Francisco Bay Area, but shall travel as
necessary to perform his duties. During the first six months of his employment
Executive will devote a majority of his time to building the business of
Saraide.
3. Compensation. InfoSpace shall pay Executive an annual base salary
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("Base Salary"), fixed at $200,000, payable by the Employer in accordance with
the Employers' standard payroll procedures. Base Salary shall be subject to
review and may be increased (but not decreased) by Employer.
4. Bonus. Any bonus payable by Employer to Executive shall be at the
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discretion of the Boards.
5. Equity Incentives. Upon the Effective Date, Executive shall receive
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equity incentives described as follows:
(a) From InfoSpace Executive shall be granted two non-qualified stock
options to purchase an aggregate of 3,500,000 shares of the common stock of
InfoSpace, such number of shares to be adjusted pursuant to the terms of the
March 15, 2000 stock split (or any subsequent stock split). One of the stock
options shall be in the amount of 1,000,000 (pre-split) shares of the common
stock of InfoSpace (the "InfoSpace Option"). The other stock option shall be in
the amount of 2,500,000 (pre-split) shares of the common stock of InfoSpace (the
"InfoSpace Tandem Option"). Both the InfoSpace Option and the InfoSpace Tandem
Option shall vest 25% upon the date of grant and at the rate of 1.5625% per
month over the four years from the Effective Date; provided, however that
Executive has been continuously providing services to
2.
Employer from the Effective Date to the relevant vesting date. Both the
InfoSpace Option and InfoSpace Tandem Option shall have an exercise price per
share equal to 100% of the fair market value of InfoSpace's common stock on the
Effective Date. Except as otherwise specified herein, the terms of the InfoSpace
Option and the InfoSpace Tandem Option shall be the same as those set forth in
InfoSpace's standard form of non-qualified stock option agreement.
(b) From Saraide Executive shall be granted a non-qualified stock
option to acquire shares of Saraide's common stock in an amount equal to 7% of
the outstanding shares of Saraide's equity securities plus that number of shares
of Saraide common stock subject to vested stock options on the Effective Date
(the "Total Outstanding Shares") (the "Saraide Option"). The Saraide Option
shall be immediately exercisable in whole or in part by Executive delivering to
Saraide a full-recourse, four-year promissory note for the purchase price with
interest payable at least annually at the minimum Federal rate applicable at the
date of the note to avoid imputation of interest (the "Early Exercise Note").
If the Saraide Option is exercised in whole or in part prior to the time such
exercised shares are vested, then such unvested exercised shares are subject to
a repurchase right at the Executive's exercise price as stated on the stock
option grant notice in favor of Saraide upon the termination of Executive's
service with the Employer, but only as to those shares remaining unvested on the
date of termination. The Saraide Option shall have an exercise price per share
equal to 100% of the fair market value of Saraide's common stock on the
Effective Date which price shall not exceed the lowest exercise price of any
option granted by Saraide to any employee on or after the effective date of the
acquisition of Saraide by InfoSpace and prior to the Effective Date; provided,
however, that the exercise price per share of the Saraide Option shall not be
less than 85% of the fair market value of the Saraide common stock on the
Effective Date. Except as otherwise specified herein, the terms of the Saraide
Option shall be the same as those set forth in Saraide's standard form of non-
qualified stock option agreement.
(i) That portion of the Saraide Option equal to 4.25% of the
Total Outstanding Shares will be a 10-year non-qualified stock option, of
which 1.06% (approximately 25% of this portion of the Saraide Option) will
vest upon the date of grant and 3.19% (approximately 75% of this portion of
the Saraide Option) will vest over the four years from the Effective Date
at the rate of .06645% (i.e., 1/48/th/ of 3.19%) per month; provided,
however that Executive has been continuously providing services to Employer
from the Effective Date to the relevant vesting date.
(ii) That portion of the Saraide Option equal to 2.75% of the
Total Outstanding Shares will be a 10-year non-qualified stock option which
will vest in any event on the sixth anniversary of the Effective Date and
otherwise will vest (A) as to 1% (approximately 36% of this portion of the
Saraide Option) when the total market capitalization of Saraide (for a
continuous period of 10 business days and on a fully-diluted basis,
adjusted to exclude unutilized portions of share reserves of compensatory
stock plans, the unvested portion of outstanding stock options, and
unvested shares of Saraide's stock) is $5.0 billion or more, (B) as to 1%
(approximately 36% of this portion of the Saraide Option) when the total
market capitalization of Saraide is $7.0 billion or more (calculated as
described above), and (C) as to .75% (approximately 28% of this portion of
the Saraide Option) when the total market capitalization of Saraide is
$10.0
3.
billion or more (calculated as described above); provided, however that
Executive has been continuously providing services to Employer from the
Effective Date to the relevant vesting date. Total market capitalization
shall be determined by the closing market prices of Saraide common stock if
publicly traded. If Saraide is not publicly traded, total market
capitalization shall be determined by the Saraide Board in its sole
discretion based upon relevant factors such as (x) an independent
valuation, (y) one or more arms-length transactions, or (z) an offer to
acquire, or a transaction involving the acquisition of, the minority
interests in Saraide by InfoSpace.
(c) Immediately upon the exercise, including early exercise, of any
portion of either the Saraide Option or the InfoSpace Tandem Option by
Executive, the stock option which Executive did not exercise automatically shall
be cancelled and have no further force or effect. It is not intended that
Executive be entitled to the benefits of both the Saraide stock incentives and
the InfoSpace Tandem Option, but, ultimately, one or the other.
(d) Notwithstanding anything to the contrary herein, Executive and
Employer acknowledge that they would prefer (i) to permit Executive to early
exercise the Saraide Option without thereby electing to take the benefits of the
Saraide Option in lieu of the InfoSpace Tandem Option; and (ii) to agree that,
upon repurchase of unvested shares that were issued to Executive upon early
exercise of the Saraide Option, Employer would repay to Executive any interest
that Executive paid on the Early Exercise Note (together, the "Intended
Provisions"). However, Executive and Employer further acknowledge that Employer
has been advised by its public accountants that neither of the Intended
Provisions described herein can be accomplished without adverse accounting
consequences to Employer. Employer and Executive shall continue to explore
possible solutions for accomplishing the Intended Provisions without resulting
in the adverse accounting consequences. If any such solution can be identified,
avoiding this result, for either or both of the Intended Provisions, then the
parties will execute an amendment to this Agreement incorporating the solution
or solutions. If no such solution can be identified for either Intended
Provision, then Employer and Executive shall negotiate in good faith to reach
agreement on an arrangement to enable Executive to realize the economic benefits
of the Intended Provisions.
(e) The initial grants of stock options provided in Sections 5(a) and
5(b) of this Agreement ("Initial Grants") may be supplemented, at the discretion
of the Boards, by additional grants based upon individual performance.
(f) Notwithstanding the basic vesting provisions, further vesting of
the stock incentives subject to the Initial Grants will occur as follows:
(i) in the event of a Change of Control, 37 1/2% of the unvested
portion of such stock incentives shall become immediately vested
immediately prior to the effective date of the Change of Control
transaction;
(ii) in the event Executive's employment is terminated upon or
within 13 months following a Change of Control either (A) by Employer
without Cause or (B) by Executive for Good Reason, an additional 37 1/2% of
the unvested portion of such stock incentives shall become immediately
vested;
4.
(iii) if Executive's service with Employer is terminated by
reason of his death or Disability (as defined in Section 8(b)), then
vesting of such stock incentives shall be accelerated by one year;
(iv) if Executive's service with Employer is terminated by
Employer without Cause, then additional vesting of such stock incentives
shall occur as follows:
(A) if such termination occurs during the first year after
the Effective Date, then Executive shall be credited with an
additional 12 months of vesting;
(B) if such termination occurs during the second year from
the Effective Date, then Executive shall be credited with an
additional six months of vesting;
(C) if such termination occurs after the second year from
the Effective Date, then Executive shall be credited with an
additional three months of vesting.
(v) if Executive's service with Employer is terminated by
Employee for Good Reason, then Executive shall be credited with an additional
six months of vesting.
(g) The stock incentives subject to the Initial Grants shall be
exercisable after Executive's termination of service with Employer as follows:
(i) if termination is by reason of death, Disability,
termination by Employer without Cause, or termination by Executive for Good
Reason, the stock incentives shall be exercisable (A) 18 months after the
date of termination if at such date the common stock of Saraide is publicly
traded or (B) three years from the date of termination if at such date the
common stock of Saraide is not publicly traded;
(ii) if termination of service is by Employer for Cause, the
stock incentives shall be exercisable within 14 days after the date of
termination;
(iii) if termination of service is by Executive, other than for
Good Reason, the stock incentives shall be exercisable until 90 days after
the date of termination.
(iv) if termination of service is by Executive voluntarily
within 12 months of the Effective Date and is not by reason of death,
Disability, termination by Employer without Cause, or termination by
Executive for Good Reason, the 25% of such stock incentives which vested
immediately on the Effective Date shall be reduced by one-twelfth (2.083%)
for each full month by which the duration of Executive's employment from
the Effective Date is fewer than 12 months, notwithstanding any other
provision of the stock incentives.
(h) In the event that the acceleration of the vesting and
exercisability of the stock incentives and/or the lapse of reacquisition or
repurchase rights with respect to the stock
5.
incentives provided for in subsection 5(f)(i) and (ii) and benefits otherwise
payable to Executive, but determined without regard to any additional payments
required under this subsection 5(h) (a "Payment"), would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as
amended (the "Code"), or any comparable federal, state, or local excise tax
(such excise tax, together with any interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then Executive shall be entitled
to receive an additional payment (a "Gross-Up Payment") in such an amount that
after the payment of all taxes (including without limitation, any interest and
penalties on such taxes and the excise tax) on the Payment and on the Gross-Up
Payment, Executive shall retain an amount equal to the Payment minus all
applicable income and individual employment taxes on the Payment. The intent of
the parties is that the Company shall be solely responsible for, and shall pay,
any Excise Tax on the Payment and Gross-Up Payment and any income, employment
and other taxes (including, without limitation, penalties and interest) imposed
on any Gross-Up Payment, as well as any loss of tax deduction caused by the
Gross-Up Payment or applicable provisions of the Code. All determinations
required to be made under this subsection 5(h), including without limitation,
whether and when a Gross-Up Payment is required and the amount of such Gross-Up
Payment and the assumptions to be utilized in arriving at such determinations,
shall be made by a nationally recognized accounting firm that is the Company's
outside auditor at the time of such determinations, which firm must be
reasonably acceptable to Executive (the "Accounting Firm"). All fees and
expenses of the Accounting Firm shall be borne solely by the Company.
6. Benefits. Executive shall be entitled to four weeks vacation time per
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calendar year, which vacation time shall be scheduled at the mutual convenience
of Executive and Employer. Executive shall be entitled to all rights and
benefits for which he is eligible under the terms and conditions of the standard
InfoSpace benefits and compensation plans which may be in effect from time to
time and provided by InfoSpace to its executive level employees generally.
Notwithstanding the foregoing, Employer may, in its discretion, at any time and
from time to time, change or revoke any of its employee benefits plans, programs
or policies, and Executive shall not be deemed, by virtue of this Agreement, to
have any vested interest in any such plans, programs or policies.
7. Expenses. The Employer shall reimburse Executive for all reasonable
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travel, entertainment or other expenses incurred by him in furtherance of or in
connection with the performance of his duties hereunder, in accordance with the
Employer's expense reimbursement policy as in effect from time to time.
Executive shall also be entitled to reimbursement by Employer for the reasonable
cost of a car and driver between his residence and Saraide's offices.
8. Termination. Executive's employment hereunder may be terminated
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without any breach of this Agreement only under the following circumstances:
(a) Death. Executive's employment hereunder shall terminate upon his
death.
(b) Disability. Executive's employment with the Employer will be
terminated in the event of Executive's illness, disability or other incapacity
that renders Executive physically and/or mentally unable regularly to perform
the essential duties of his positions hereunder for a period in excess of 120
consecutive days, or in excess of 180 days in any consecutive 12 month
6.
period ("Disability"). The determination regarding whether Executive has reached
Disability status shall be made by the Boards in good faith.
(c) Cause. Employer may terminate Executive's employment hereunder
for Cause. For purposes of this Agreement, Employer shall have "Cause" to
terminate Executive's employment hereunder upon Executive's:
(i) conviction of a felony or any crime involving moral
turpitude or dishonesty; or
(ii) gross neglect or refusal to substantially perform his
duties hereunder (other than that resulting from Executive's Disability)
after demand for substantial performance is delivered by either Board in
writing that specifically identifies the manner in which the Board believes
Executive has not substantially performed his duties and Executive does not
remedy such neglect or refusal within 30 days following receipt of such
written notice;
(iii) participation in a fraud or act of dishonesty against
Employer; or
(iv) intentional and material damage to the Employer's property;
(v) material breach of this Agreement, InfoSpace's written
policies, or either [Proprietary Information and Inventions Agreement],
that is not remedied by Executive within 14 days of written notice of such
breach from either Board;
(vi) serious misconduct or conduct by Executive which
demonstrates Executive's gross unfitness to serve the Employer, as
determined by either Board.
Cause shall not exist unless and until Employer has delivered to Executive
a copy of a resolution duly adopted by a majority of the Board or Boards at a
meeting or meetings called and held for such purpose (after reasonable notice to
the Executive and an opportunity for Executive, together with his counsel, to be
heard before the Board or Boards), finding that in the good faith opinion of
either Board, the conduct set forth in this Section 8(c) occurred, and
specifying the particulars thereof.
(d) Good Reason. Executive may establish "Good Reason" for
termination of his employment by notifying the Employer in writing, within 10
days after the occurrence of one of the following events, that Executive intends
to terminate his employment for Good Reason in 30 days if the circumstance has
not been cured before then, and then if the circumstance has not been cured
within 30 days, by submitting his resignation effective within 10 days after the
30-day period. The events or circumstances upon which termination for Good
Reason can be based are as follows:
(i) the reassignment of Executive by Employer, without
Executive's express written consent, to a position with Employer other than
those set forth in Section 2 hereof;
7.
(ii) a significant adverse change in Executive's title,
authority, powers, functions, duties or responsibilities, provided that
change resulting from the acquisition of the Employer by another company,
where Executive's titles and authority remain unchanged, and the Employer
remains essentially intact, will not constitute "Good Reason";
(iii) a reduction in Executive's Base Salary without Executive's
consent;
(iv) the relocation of Executive's work location outside of the
San Francisco Bay Area without the Executive's consent;
(v) Employer's failure to perform its obligations under this
Agreement in any material respect; or
(vi) the failure of a successor to the Employer in a Change of
Control to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that Employer would be required to perform it
if no such Change of Control had taken place. Failure of Employer to
obtain such assumption and agreement prior to the effectiveness of any such
succession, without regard to the 30-day notice provision above, shall be a
material breach of this Agreement.
(e) Termination Without Cause. Employer may terminate Executive's
employment without Cause at any time upon 30 days' written notice.
(f) Termination Without Good Reason. Executive may terminate
employment without Good Reason at any time upon 30 days' written notice.
9. Compensation Upon Termination.
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(a) Death or Disability. If Executive's employment is terminated by
his death or his Disability, then Employer shall pay to Executive (or his legal
representatives or estate or as may be directed by the legal representatives of
his estate, as the case may be) any accrued and unpaid Base Salary and vacation
pay immediately, and expense reimbursements within thirty 30 days of
termination.
(b) Termination by Employer (Without Cause); or By Executive for Good
Reason After Change of Control. If Executive's employment is terminated by the
Employer without Cause, or upon or within six months following a Change of
Control, by Executive for Good Reason, then upon Executive's providing the
Employer a general release and waiver of all claims in a form acceptable to the
Employer, Employer shall continue to pay Executive's Base Salary for six months
following the termination, in accordance with InfoSpace's standard payroll
procedures.
(c) Termination By the Employer for Cause; or By Executive Other Than
for Good Reason After Change of Control. If Executive's employment is
terminated by Employer for Cause, or by Executive other than for Good Reason
upon or within six months following a Change of Control, then:
8.
(i) Employer shall immediately pay Executive his accrued but
unpaid Base Salary and vacation pay, and within 30 days of termination, his
unpaid expense reimbursements;
(ii) notwithstanding anything contained herein to the contrary,
none of the stock incentives granted pursuant to Section 5 shall vest after
the date of termination and all unvested options shall immediately
terminate;
(iii) except as specifically provided herein, Executive shall
receive no further compensation or benefits, and Employer shall have no
additional obligation to Executive under this Agreement.
10. Other Agreements.
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(a) Proprietary Information and Inventions Agreements. Executive
shall execute and comply with both the InfoSpace and Saraide forms of Employee
Proprietary Information and Inventions Agreement attached as Exhibits A and B
hereto and incorporated herein by reference. Executive's duties under the
Proprietary Information and Inventions Agreements shall survive termination of
Executive's employment with the Employer. Executive acknowledges that a remedy
at law for any breach or threatened breach by Executive of the provisions of the
Proprietary Information and Inventions Agreements would be inadequate and
Executive therefore agrees that the Employer shall be entitled to injunctive
relief in case of any such breach or threatened breach. If Executive breaches
any of the provisions of either of the Proprietary Information and Inventions
Agreements, then Employer, in addition to all other rights and remedies
thereunder, may cease making payments to Executive under subsection 9(b) of this
Agreement and require Executive to repay to Employer any payments previously
made under such subsections.
(b) Indemnification. InfoSpace and Saraide shall, to the fullest
extent permitted by applicable Delaware law, and in accordance with their
respective Bylaws and Charters, indemnify Executive and hold him harmless from
any cost, expense or liability arising out of or relating to any acts or
decisions made by him within the course and scope of his duties hereunder.
Employee shall be added as an additional named insured under all appropriate
insurance policies now in force or hereinafter obtained by Employer. Any
termination of Executive's employment or of this Agreement shall have no effect
on the continuing operation of this Section.
(c) No Conflicting Agreements. Executive represents and warrants that
his employment by the Employer will not conflict with and will not be
constrained by any prior agreement or relationship with any third party.
Executive represents and warrants that he will not disclose to the Employer or
use on behalf of the Employer any confidential information governed by any
agreement with any third party except in accordance with an agreement between
the Employer and any such third party. During Executive's employment by the
Employer, Executive may use, in the performance of his duties, all information
generally known and used by persons with training and experience comparable to
his own and all information which is common knowledge in the industry or
otherwise legally in the public domain.
9.
(d) Outside Activities.
(i) Investments and Interests. Except as permitted by Section
10(d)(ii), Executive agrees, during his employment by the Employer, not to
acquire, assume or participate in, directly or indirectly, any position,
investment or interest known by him to be adverse or antagonistic to the
Employer, its business or prospects, financial or otherwise.
(ii) Non-Competition. During his employment by the Employer
except on behalf of the Employer, Executive will not directly or
indirectly, whether as an officer, director, founder, stockholder, partner,
proprietor, associate, representative, consultant, employee, or in any
capacity whatsoever engage in, become financially interested in, be
employed by or have any business connection with any other person,
corporation, firm, partnership or other entity whatsoever known by him to
compete directly with the Employer, anywhere in the world, in any line of
business engaged in (or planned to be engaged in) by the Employer;
provided, however, that anything above to the contrary notwithstanding,
Executive may own, as a passive investor, securities of any competitor
corporation, so long as Executive's direct holdings in any one such
corporation shall not in the aggregate constitute more than 1% of the
voting stock of such corporation.
(e) Upon its acquisition of Saraide InfoSpace shall transfer to
Saraide all of the business, assets and technology in wireless
telecommunications to Saraide.
11. Change of Control. For purposes of this Agreement, a "Change of
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Control" shall be deemed to occur if:
(a) any "person" (as such term is utilized in Section 13(d) and
Section 14(d)(2) of the Exchange Act), including without limitation any "group"
(as such term is utilized in Section 13(d)(3) of the Exchange Act), shall become
the "beneficial owner" (as such term is defined in Rule 13d-3 under the Exchange
Act) of securities of InfoSpace or Saraide (other than InfoSpace, a controlled
affiliate of InfoSpace, or an employee benefit plan sponsored by InfoSpace or
such controlled affiliate) representing more than 50% of the votes that may be
cast for the election of directors of InfoSpace or Saraide as the case may be;
or
(b) a merger or consolidation involving InfoSpace or Saraide
("Involved Entity") in which the Involved Entity is not the surviving entity,
except for (i) a transaction the principal purpose of which is to change the
state of the Involved Entity's incorporation, or (ii) a transaction in which the
Involved Entity's stockholders immediately prior to such merger or consolidation
hold (by virtue of securities received in exchange for their shares in the
Involved Entity) securities of the surviving entity representing more than 50%
of the total voting power of such entity immediately after such transaction;
(c) the sale, transfer or other disposition of all or substantially
all of the assets of the Involved Entity unless the Involved Entity's
stockholders immediately prior to such sale, transfer or other disposition hold
(by virtue of securities received in exchange for their shares in the Involved
Entity) securities of the purchaser or other transferee representing more than
50% of the total voting power of such entity immediately after such transaction;
or
10.
(d) any reverse merger in which the Involved Entity is the surviving
entity but in which the Involved Entity's stockholders immediately prior to such
merger do not hold (by virtue of their shares in the Involved Entity held
immediately prior to such transaction) securities of the Involved Entity
representing more than 50% of the total voting power of the Involved Entity
immediately after such transaction.
12. Notices. Any notice required or permitted to be given under this
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Agreement shall be in writing, and shall be given by hand-delivery to the
addressee, or by email or fax together with deposit in the U.S. mail, postage
prepaid, certified mail, return receipt requested, as follows:
If to InfoSpace, to:
XxxxXxxxx.xxx, Inc.
00000 XX 00/xx/ Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxx
Facsimile: 000-000-0000
email: xxxxxx@xxxxxxxxx.xxx
With a copy to InfoSpace's General Counsel at the same address.
If to Saraide, to:
Saraide Inc.
0000 Xxxxxxx Xxxxxx Xxxx., Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Facsimile: 000-000-0000
email: xxxxx.xxxxxx@xxxxxxx.xxx
With a copy to Saraide's General Counsel at the same address.
If to Executive, to:
Xxxx Xxxxx
0 Xxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
or such other address as a party may specify by notice hereunder to the others.
Any notice sent in accordance with the foregoing provisions shall be deemed
given on the date of receipt if personally delivered, or on the date faxed or
emailed if receipt is confirmed, or three days after being deposited in the mail
as prescribed. Refusal to accept certified mail upon notice will nevertheless
constitute receipt.
13. Assignment. This Agreement is personal to Executive, and he shall not
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assign any of his rights or delegate any of his duties hereunder without the
prior written consent of Employer.
11.
Employer shall have the right to assign this Agreement to a successor in
interest in connection with a Change of Control.
14. Survival. The provisions of Sections 9, 10, 16, 17, 18, 19 and 22 of
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this Agreement shall survive the termination of Executive's employment hereunder
in accordance with their terms.
15. Governing Law. This Agreement shall be governed by, and construed and
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enforced in accordance with, the laws of the State of California.
16. Binding Upon Successors. This Agreement shall be binding upon, and
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shall inure to the benefit of, the parties hereto and their respective heirs,
legal representatives, successors and permitted assigns. All rights of the
Executive hereunder shall inure to the benefit of and be enforceable by the
Executive's personal and legal representatives, executors, administrators,
successors, heirs, distributees and legatees.
17. Entire Agreement; Amendment. This Agreement together with Exhibits A
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and B hereto, and the stock option agreements between Executive and Saraide and
InfoSpace, respectively, constitutes the entire agreement between Employer and
Executive with respect to the subject matter hereof and supersedes any prior
agreement, promise, representation, or statement written or otherwise between
Executive and the Employer with regard to this subject matter. It is entered
into without reliance on any promise, representation, statement or agreement
other than those expressly contained or incorporated herein, and it cannot be
modified or amended except in a writing signed by Executive and the Chairman of
InfoSpace.
18. Waiver; Cumulative Rights and Remedies.
--------------------------------------
(a) The waiver by either party of a breach of any provision of this
Agreement shall not operate as a waiver of any subsequent breach.
(b) No failure on the part of any party to exercise, and no delay in
exercising, any right or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or remedy by such party
preclude any other or further exercise thereof or the exercise of any other
right or remedy. All rights and remedies hereunder are cumulative and are in
addition to all other rights and remedies provided by law, agreement or
otherwise.
19. Severability. Whenever possible, each provision of this Agreement
------------
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but such invalid, illegal or
unenforceable provision will be reformed, construed and enforced in such
jurisdiction so as to render it valid, legal, and enforceable consistent with
the intent of the parties insofar as possible.
20. Counterparts. This Agreement may be executed in one or more
------------
counterparts each of which shall be an original but all of which taken together
shall constitute one and the same instrument.
12.
21. Confidentiality. The Employer may not make any announcement or public
---------------
disclosure of this Agreement until the Effective Date without the prior written
consent of Executive. In no event will Employer make any announcement or public
disclosure of this Agreement or the subject matter of this Agreement until the
day after the Effective Date.
22. Attorneys' Fees. In the event of litigation between Executive and
---------------
Employer in connection with this Agreement, the prevailing party shall be
entitled to recover reasonable attorneys' fees.
23. Investment in Venture Fund. Executive may, but shall not be obligated
--------------------------
to, invest up to $5.0 million in a venture fund in which other executives and
employees of InfoSpace are or will be investors.
IN WITNESS WHEREOF, the Employer and the Executive have executed this
Agreement effective as of the date first above written.
XXXXXXXXX.XXX, INC.
By: /s/ Xxxxxx Xxxx
---------------------------------------
Xxxxxx Xxxx, Chief Executive Officer
SARAIDE INC.
By: /s/ Hatin Tyabji
---------------------------------------
Xxxxx Xxxxxx, Chief Executive Officer
EXECUTIVE:
/s/ Xxxx Xxxxx
------------------------------------------
Xxxx Xxxxx
Address:
0 Xxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
13.
EXHIBITS
14.
SARAIDE, INC.
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
As an employee of SARAIDE, INC., any of its subsidiary or affiliates (together,
the "Company") and as a condition of my employment by the Company and in
consideration of the compensation now and hereafter paid to me, I agree to the
following.
1. MAINTAINING CONFIDENTIAL INFORMATION
1.1 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 as required in connection with my work for the Company, or to disclose to
any person, firm or corporation, without the written authorization of an officer
of the Company, any trade secrets, confidential knowledge, data or other
proprietary information of the Company. By way of illustration and not
limitation, such shall include information relating to products, processes,
know-how, designs, formulas, source code, object code, programs, methods,
samples, developmental or experimental work, improvements, discoveries, plans
for research, new products, marketing and selling, business plans, budgets and
unpublished financial statements, licenses, prices and costs, suppliers and
customers, and information regarding the skills and compensation of other
employees of the Company. I further agree to obtain the Company's written
approval before publishing or submitting for publication any material (written,
verbal or otherwise) that relates to my work at the Company and/or incorporates
any confidential or proprietary information of the Company.
1.2 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 my former or concurrent employers or companies,
if any, and that I will not bring onto the premises of the Company any
unpublished documents or any property belonging to my former or concurrent
employers or companies unless consented to in writing by said employers or
companies. I will use in the performance of my duties only information which is
generally known and used by persons with training and experience comparable to
my own, which is common knowledge in the industry or otherwise legally in the
public domain, or which is otherwise provided or developed by the Company.
1.3 Third Party Information - I recognize that the Company has received
and in the future will receive confidential or proprietary information from
third parties subject to a duty on the Company's part to maintain the
confidentiality of such information and, in some cases, to use it only for
certain limited purposes. I agree that I owe the Company and such third
parties, both during the term of my employment and thereafter, a duty to hold
and will so hold all such confidential or proprietary information in the
strictest confidence and not to disclose it to any person, firm or corporation
(except in a manner that is consistent with the Company's agreement with the
third party) or use it for the benefit of anyone other than the Company or such
third party (consistent with the Company's agreement with the third party),
unless expressly authorized to act otherwise by an officer of the Company.
2. ASSIGNMENT OF INVENTIONS AND ORIGINAL WORKS
2.1 Inventions and Original Works Retained by Me - I have attached hereto
as Exhibit A a complete list of all inventions, original works of authorship,
developments, improvements, and trade secrets that I have, alone or jointly with
others, conceived, developed or reduced to practice or caused to be conceived,
developed or reduced to practice prior to the commencement of my employment with
the Company and which I consider to be my property or the property of third
parties and that I wish to have excluded from the scope of this Agreement
(collectively referred to as "Prior Inventions"). If disclosure of an item on
Exhibit A would cause me to violate any prior confidentiality agreement, I
understand that I am not to list such in Exhibit A but I am to inform the
Company that items have not been listed for that reason. A space is provided on
Exhibit A for such purpose. If no list is attached, I represent that there are
no such items. If, in the course of my employment with the Company, I
incorporate a Prior Invention into a Company product, process or machine, the
Company is hereby granted and shall have a nonexclusive, royalty-free,
irrevocable, perpetual, worldwide license (with rights to sublicense through
multiple tiers of sublicensees) to make, have made, modify, use and sell such
Prior Invention. Notwithstanding the
(1)
foregoing, I agree that I will not incorporate, or permit to be incorporated,
Prior Inventions in any work done for the Company without the Company's prior
written consent.
2.2 Inventions and Original Works Assigned to the Company - I agree that I
will make prompt written disclosure to the Company, will hold in trust for the
sole right and benefit of the Company, and hereby assign to the Company all my
rights, title and interest in and to any ideas, inventions, original works of
authorship, developments, improvements or trade secrets which I may solely or
jointly conceive or reduce to practice, or cause to be conceived or reduced to
practice, during the period of my employment with the Company.
2.2.1 I recognize that this Agreement does not require assignment of
any invention which I have developed entirely on my own time without using
the Company's equipment, supplies, facilities, or trade secret information
except for those inventions that either:
(a) relate at the time of conception or reduction to practice
of the invention to the Company's business, or actual or demonstrably
anticipated research or development of the Company; or,
(b) result from any work performed by myself for the Company.
2.2.2 I acknowledge that all original works of authorship which are
made by me (solely or jointly with others) within the scope of my
employment and which are protectable by copyright are "works made for
hire," as that term is defined in the United States Copyright Act (17
U.S.C., Section 101) or the "in the course of employment" within the
meaning of the Copyright Act of Canada (Section 13 (3))and belong to the
Company. I hereby further waive any moral rights I may otherwise claim on
such works of authorship and copyright.
2.2.3 This Agreement may not apply to an invention, improvement,
discovery or development which qualifies fully as nonassignable under
Section 2870 of the California Labor Code (hereinafter "Section 2870"). I
have reviewed the notification on Exhibit B (Limited Exclusion
Notification) and agree that my signature acknowledges receipt of the
notification.
2.3 Obtaining Letters Patent, Copyright Registrations and Other
Protections - I will assist the Company in every proper way to obtain and
enforce Canadian, United States and foreign proprietary rights relating to any
and all inventions, original works of authorship, developments, improvements or
trade secrets of the Company in any and all countries. To that end I will
execute, verify and deliver such documents and perform such other acts
(including appearing as a witness) as the Company may reasonably request for use
in applying for, obtaining, evidencing, sustaining and enforcing or to perfect
such proprietary rights and the assignment thereof. In addition, I will execute,
verify and deliver assignments of such proprietary rights to the Company or its
designee. My obligation to assist the Company with respect to proprietary
rights in any and all countries shall continue beyond the termination of my
employment, but the Company shall compensate me at a reasonable rate after my
termination for the time actually spent by me at the Company's request on such
assistance.
In the event the Company is unable for any reason, after reasonable effort, to
secure my signature on any document needed in connection with the actions
specified in the preceding paragraph, I hereby irrevocably designate and appoint
the Company and its officers and agents as my agent and attorney-in-fact, to act
for and in my behalf to execute, verify and file any such documents and to do
all other lawfully permitted acts to further the purposes of the preceding
paragraph with the same legal force and effect as if executed by me. I hereby
waive and quitclaim to the Company any and all claims of any nature whatsoever
which I now or may hereafter have for infringement of any proprietary rights
assigned to the Company.
2.4 Obligation to Keep the Company Informed - In addition to my
obligations under paragraph 2 above, during the period of my employment and for
one (1) year after termination of my employment for any reason, I will promptly
disclose to the Company fully and in writing all patent applications filed by me
or on my behalf. At the time of each such disclosure, I will advise the Company
in writing of any inventions that I believe are
(2)
not inventions and original works assigned to the Company and I will at that
time provide to the Company in writing all evidence necessary to substantiate
that belief. I understand that the Company will keep in confidence and will not
disclose to third parties without my consent any proprietary information
disclosed in writing to the Company pursuant to this Agreement relating to
inventions that are not inventions and original works assigned to the Company. I
will preserve the confidentiality of any invention that is an invention and
original work assigned to the Company. I agree to keep and maintain adequate and
current records (in the form of notes, sketches, drawings and in any other form
that may be required by the Company) of all proprietary information developed by
me and all inventions made by me during the period of my employment at the
Company, which records shall be available to and remain the sole property of the
Company at all times.
3. NO CONFLICTING EMPLOYMENT, NO INDUCEMENT OF OTHER EMPLOYEES OR SOLICITATION
OF CUSTOMERS
3.1 I agree that during the period of my employment by the Company I will
not, without the Company's express written consent, engage in any employment or
business activity which is competitive with or would otherwise conflict with the
business in which the Company is now involved or becomes involved nor will I
engage in any other activities which conflict with my obligations to the
Company. For the period of my employment by the Company and for one (1) year
after the date of termination of my employment by the Company I will not induce
any employee of the Company to leave the employ of the Company.
If any restriction set forth in this agreement is found by any court of
competent jurisdiction to be unenforceable because it extends for too long a
period of time or over too great a range of activities or in too broad a
geographic area, it shall be interpreted to extend only over the maximum period
of time, range of activities or geographic area as to which it may be
enforceable.
4. NO CONFLICTING OBLIGATIONS
4.1 I represent that my performance of all the terms of this Agreement and
as an employee of the Company does not and will not breach any agreement to keep
in confidence 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 agreement either written or oral in conflict herewith.
5. RETURN OF COMPANY DOCUMENTS
5.1 When I leave 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, electronic
mail, other documents or property, together with all copies thereof (in whatever
medium recorded) belonging to the Company, its successors or assigns. I agree
that any property situated on the Company's premises and owned by the Company,
including disks and other storage media, filing cabinets or other work areas, is
subject to inspection by Company personnel at any time with or without notice.
Prior to leaving, I will cooperate with the Company in completing and signing
the Company's termination statement.
6. NOTIFICATION OF NEW EMPLOYER
6.1 In the event that I leave the employ of the Company, I hereby consent
to the notification of my new employer of my rights and obligations under this
Agreement.
7. LEGAL AND EQUITABLE REMEDIES
7.1 Because my services are personal and unique and because I may have
access to and become acquainted with the proprietary information of the Company,
the Company shall have the right to enforce this
(3)
Agreement and any of its provisions by injunction, specific performance or other
equitable relief, without bond and without prejudice to any other rights and
remedies that the Company may have for a breach of this Agreement.
8. GENERAL PROVISIONS
8.1 Not an Employment Contract - I agree and understand that nothing in
this Agreement shall confer any right with respect to continuation of employment
by the Company, nor shall it interfere in any way with my right or the Company's
right to terminate my employment at any time, with or without cause.
8.2 Governing Law - This Agreement will be governed by and construed
according to the laws of the State of California in the United States of America
excluding conflicts of laws principles. I hereby expressly consent to the venue
and personal jurisdiction of the state and federal courts located in San Mateo
County, California for any lawsuit filed there against me by the Company arising
from or relating to this Agreement.
8.3 Severability - In case any one or more of the provisions contained in
this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect the other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein. If moreover, any one or more of the provisions
contained in this Agreement shall for any reason be held to be excessively broad
as to duration, geographical scope, activity or subject, it shall be construed
by limiting and reducing it, so as to be enforceable to the extent compatible
with the applicable law then appear.
8.4 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.
8.5 Survival - The provisions of this Agreement shall survive the
termination of my employment and the assignment of this Agreement by the Company
to any successor in interest or other assignee.
8.6 Waiver - No waiver by the Company of any breach of this Agreement
shall be a waiver of any preceding or succeeding breach. No waiver by the
Company of any right under this Agreement shall be construed as a waiver of any
other right. The Company shall not be required to give notice to enforce strict
adherence to all terms of this Agreement.
8.7 Notice - Any notice required or permitted hereunder shall be given to
the appropriate party at the address specified below or at such other address as
the party shall specify in writing. Such notice shall be deemed given upon
personal delivery, or sent by certified or registered mail, postage prepaid,
three (3) days after the date of mailing.
8.8 Entire Agreement - This Agreement and its exhibits, attached hereto
and hereby incorporated herein, set forth the final, entire and exclusive
agreement and understanding between the Company and me relating to the subject
matter hereof and supersedes all prior and contemporaneous understandings and
agreements relating to its subject matter. No modification of or amendment to
this Agreement, nor any waiver of any rights under this Agreement, will be
effective unless in writing signed by both the Company and me. Any subsequent
change or changes in my duties, salary or compensation will not affect the
validity or scope of this Agreement.
This Agreement shall be effective as of the first day of my employment with the
Company, namely:________________, 2000.
I UNDERSTAND THAT THIS AGREEMENT AFFECTS MY RIGHTS TO INVENTIONS I MAKE DURING
MY EMPLOYMENT, AND RESTRICTS MY RIGHT TO DISCLOSE OR USE THE COMPANY'S
PROPRIETARY INFORMATION DURING AND SUBSEQUENT TO MY EMPLOYMENT.
(4)
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE
COMPLETELY FILLED OUT EXHIBIT A AND EXHIBIT B TO THIS AGREEMENT.
Date: ___________________, 2000 /s/ Xxxx Xxxxx
--------------------------------
Signature
XXXX XXXXX
----------------------------
Name of Employee
2 XXXX ALPINE
----------------------------
Address
XXXXXXXX, XX 00000
----------------------------
ACCEPTED AND AGREED TO
on this ___th day of ___________, 2000.
SARAIDE
By:___________________________
Authorized Signatory
(5)
EXHIBIT A
SARAIDE
The following is a complete list of all inventions or improvements relevant to
the subject matter of my employment by SARAIDE, INC., its subsidiary or its
affiliate (together the "Company") that have been made or conceived or first
reduced to practice by me alone or jointly with others prior to my engagement by
the Company:
[_] No inventions or improvements
[_] See below.
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
[_] Due to confidentiality agreements with prior employer, I cannot disclose
certain inventions that would otherwise be included on the above-described
list.
[_] Additional sheets attached.
I propose to bring to my employment toe following devices, materials and
documents of a former employer or other person to whom I have obligation of
confidentiality that are not generally available to the public, which materials
and documents may be used in my employment pursuant to the express written
authorization of my former employer or such other person (a copy of which is
attached hereto):
[_] No materials.
[_] See below.
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
[_] Additional sheets attached.
Date: ___________________, 1999
_______________________________
Employee
(6)
EXHIBIT B
LIMITED EXCLUSION NOTIFICATION
THIS IS TO NOTIFY you in accordance with Section 2872 of the California
Labor Code that the foregoing Agreement between you and the Company does not
require you to assign or offer to assign to the Company any invention that you
developed entirely on your own time without using the Company'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 Company's business, or actual or demonstrably anticipated
research or development of the Company;
2. Result from any work performed by you for the Company.
To the extent a provision in the foregoing Agreement purports to require
you to assign an invention otherwise excluded from the preceding paragraph, the
provision is against the public policy of this state and is unenforceable.
This limited exclusion does not apply to any patent or invention covered by
a contract between the Company and the United States or any of its agencies
requiring full title to such patent or invention to be in the United States.
I ACKNOWLEDGE RECEIPT of a copy of this notification.
By: /s/ Xxxx Xxxxx
-------------------------------
(PRINTED NAME OF EMPLOYEE)
Date:
WITNESSED BY:
_______________________________
(PRINTED NAME OF REPRESENTATIVE)
(7)
XxxxXxxxx.xxx Employee Non-Disclosure, Invention Release and Non-competition
Agreement
1. As an employee of XxxxXxxxx.xxx, a Delaware Corporation (XxxxXxxxx.xxx), and
in consideration of the compensation now and hereafter paid to me, I will devote
my best efforts to furthering the best interest of XxxxXxxxx.xxx. During my
employment by XxxxXxxxx.xxx, I will not engage in any business activities or
ventures outside of the business activities of XxxxXxxxx.xxx without the express
prior written consent of XxxxXxxxx.xxx. Also, during my employment, I will not
engage in any activity or investment (other than an investment of less than .01%
of the shares of a company traded on registered stock exchange), that (a)
conflicts with XxxxXxxxx.xxx's business interest, including without limitation,
any business activity not contemplated by this agreement, (b) occupies my
attention so as to interfere with the proper and efficient performance of my
duties at XxxxXxxxx.xxx, or (c) interferes with the independent exercise of my
judgment in XxxxXxxxx.xxx's best interest. As used herein, XxxxXxxxx.xxx's
"business" means the development, marketing and support of software for
Internet.
2. At all times during my employment and thereafter I will not disclose to
anyone outside XxxxXxxxx.xxx nor use for any purpose other than my work for
XxxxXxxxx.xxx (a) any confidential or proprietary technical, financial,
marketing or distribution of other technical or business information or trade
secrets of XxxxXxxxx.xxx, including without limitation, concepts, techniques,
processes, methods, systems, designs, cost data, computer programs, formulas,
development or experimental work, work in progress, customer and suppliers, (b)
any information XxxxXxxxx.xxx has received from others which XxxxXxxxx.xxx is
obligated to treat as confidential or proprietary or (c) any confidential or
proprietary information which is circulated within XxxxXxxxx.xxx via its
internal email system or otherwise. I will also not disclose any confidential
information inside XxxxXxxxx.xxx except on "need to know" basis. If I have any
questions as to what comprises such confidential proprietary information or
trade secrets, or to whom, if anyone, inside XxxxXxxxx.xxx, it may be disclosed,
I will consult my manager at XxxxXxxxx.xxx
3. I will make prompt and full disclosure to XxxxXxxxx.xxx, will hold in trust
for the sole benefit of XxxxXxxxx.xxx, and will assign exclusively to
XxxxXxxxx.xxx all my rights, title and interest in and to any and all
inventions, discoveries, designs, developments, improvements, copyrightable
material, and trade secrets (collectively herein "inventions") that I, solely or
jointly, may conceive, develop, or reduce to practice during the period of time
I am in the employ of XxxxXxxxx.xxx. I hereby waive and quitclaim to
XxxxXxxxx.xxx any and all claims of any nature whatsoever that I now or
hereafter may have for infringement of any patent resulting from any patent
applications for any inventions so assigned to XxxxXxxxx.xxx.
My obligation to assign shall not apply to any Invention about which I can prove
that:
It was developed entirely on my own time; and
(a) No equipment, supplies, facility, or trade secret information of
XxxxXxxxx.xxx was used in it development; and
(b) It does not relate 1) directly to the business of XxxxXxxxx.xxx or
2) to the actual or demonstrably anticipated research or development of
XxxxXxxxx.xxx; and
(c) It does not result from any work performed by me for XxxxXxxxx.xxx
I will assign to XxxxXxxxx.xxx or its designee all my rights, title and interest
in and to any and all inventions full title to which may be required to be in
the United States by any contract between XxxxXxxxx.xxx and the United States or
any of its agencies.
4. I have attached hereto a list describing all inventions belonging to me and
made by me prior to my employment at XxxxXxxxx.xxx that I wish to have excluded
from this agreement. If no such list is attached, I represent that there are no
such inventions. If in the course of my employment at XxxxXxxxx.xxx, I use in or
incorporate into an XxxxXxxxx.xxx product, process, or machine, an invention
owned by me or in which I have an interest. XxxxXxxxx.xxx is hereby granted and
shall have an exclusive royalty-free, irrevocable, worldwide license to make,
have made, use and sell that invention without restriction as to the extent of
my ownership or interest.
5. I will execute any proper oath or verify and proper document in connection
with carrying out the terms of this agreement. If, because of my mental or
physical incapacity or for any other reason whatsoever, XxxxXxxxx.xxx is unable
to secure my signature to apply for or to pursue any application for any United
States or foreign patent or copyright covering Inventions assigned to
XxxxXxxxx.xxx as stated above, I hereby irrevocably designate and appoint
XxxxXxxxx.xxx and its duly authorized officers and agents as my agent and
attorney in fact, to act for me and in my behalf and stead to execute and file
any such applications and to all other lawfully permitted acts to further the
prosecution and issuance of U.S. and foreign patents and copyrights thereon with
the same legal force and effect as if executed by me. I will testify at
XxxxXxxxx.xxx's request and expense in any interference, litigation, or other
legal proceeding that may arise during or after my employment.
6. I recognize that XxxxXxxxx.xxx has received and will receive confidential and
proprietary information from third parties subject to a duty on XxxxXxxxx.xxx's
part to maintain the confidentiality of such information and to use it only for
certain limited purposes. During the term of my employment and thereafter I owe
XxxxXxxxx.xxx and such third parties a duty not to disclose such confidential or
proprietary information to anyone except as necessary in carrying out my work
for XxxxXxxxx.xxx and consistent with XxxxXxxxx.xxx's agreement with such third
party. I will not use such information for the benefit of anyone other than
XxxxXxxxx.xxx or such third party, or in any manner inconsistent with any
agreement between XxxxXxxxx.xxx and such third party of which I am made aware.
7. During my employment at XxxxXxxxx.xxx I will not improperly or disclose any
confidential or proprietary information or trade secrets of my former or current
employers, principals, partners, co-ventures, clients customers or suppliers or
the vendors or customers of such persons or entities or their vendors or
customers unless such persons or entities have given verbal consent. I will not
violate any non-disclosure or proprietary rights agreement I might have signed
in connection with any such person or entity.
8. I acknowledge that my employment will be of indefinite duration and that
either XxxxXxxxx.xxx or I will be free to terminate this employment relationship
at will at any time with or without cause. I also acknowledge that any
representation to the contrary are unauthorized and void, unless contained in a
formal written employment contract signed by an officer of XxxxXxxxx.xxx. I
further acknowledge that the terms and conditions of this agreement shall
survive termination of my employment.
9. At the time I leave the employ of XxxxXxxxx.xxx, I will return to
XxxxXxxxx.xxx all papers, drawings, notes, memoranda, manuals, specifications,
designs, devices, documents, diskettes and tapes, and any other material on any
media containing or disclosing any confidential or proprietary technical or
business information. I will also return any keys, pass cards, identification
cards or any other property belonging to XxxxXxxxx.xxx.
10. [Deleted]
11. While employed at XxxxXxxxx.xxx and for a period of one year from the
termination of my employment I will not induce or attempt to influence directly
or indirectly any employee of XxxxXxxxx.xxx to terminate his/her employment with
XxxxXxxxx.xxx or to work for me or any other person or entity.
12. I acknowledge that any violation of this agreement by me will cause
irreparable injury to XxxxXxxxx.xxx, and XxxxXxxxx.xxx 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.
13. If court proceedings are required to enforce any provision or to remedy any
breach of this Agreement, the prevailing party shall be entitled to an award of
reasonable and necessary expenses of litigation, including reasonable attorney
fees.
14. I agree that this agreement shall be governed for all purposes by the laws
of the state of Washington as such laws 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 property laid in King County, Washington
or in the Federal District Court of the Western District of Washington. If any
provision of this Agreement shall be declared excessively broad, it shall be
construed so as to afford XxxxXxxxx.xxx the maximum protection permissible by
law. If any provision of this Agreement is void or so declared, such provision
shall be severed from this Agreement, which shall otherwise remain in full force
and effect. This Agreement sets forth the entire Agreement of the parties as to
employment at XxxxXxxxx.xxx and any representations promises, or conditions in
connection therewith not in writing and signed by both parties shall not be
binding upon either party.
HAVING READ AND FULLY UNDERSTOOD THIS AGREEMENT, I have signed my name this date
/s/ Xxxx Xxxxx
-------------------------- __________________
Signature Date
Xxxx Xxxxx
__________________________
Employee (please print)
Inventions listed on attached: ____Yes ____No
____________________________________
XxxxXxxxx.xxx Witness
