EMPLOYMENT AGREEMENT
BETWEEN
XXXX.XXX CORPORATION AND XXXXXXX X. XXXXX, XX.
The purpose of this Agreement is to confirm the terms of the employment
relationship between xxxx.xxx Corporation ("Employer"), and Xxxxxxx X. Xxxxx,
Xx. ("Employee").
1. TERM OF AGREEMENT. Employer and Employee agree that the Employee will be
employed by Employer beginning February 13, 1998, until February 13, 2001,
unless employment is sooner terminated as provided herein.
2. POSITION AND DUTIES. Employer and Employee agree that Employee will be
employed as Director of Maintenance, and that, in this capacity, Employee's
responsibilities will include, but are not limited to:
Oversight of the Employer's Maintenance Department which is responsible for
refreshing client sites with new content at the client's request; creation of
systems and tools to facilitate the process of updating Web sites; work with
other departments in maintaining up to date Web sites while maintaining the
integrity of such sites; hiring and training personnel in the Maintenance
Department; and assistance with client requests.
It is understood that from time to time Employee may be assigned other duties in
addition to those described above and that Employee's responsibilities may be
modified or expanded at any time by Employer in order to accommodate the needs
of Employer.
2.1 In addition to his employment responsibilities, Employee agrees to
assume whatever corporate office Employer's Board of Directors may designate
from time to time, subject to Employee's reasonable satisfaction that the
indemnification of officers of Employer as provided for in Employer's articles
of incorporation and bylaws at the time of such designation are at least as
protective as such indemnification as is provided in Employer's articles of
incorporation and bylaws as of the date hereof.
2.2 Employee agrees to devote his full-time efforts to his duties with
Employer and further agrees that Employee will not directly or indirectly engage
or participate in any activities while employed with Employer that would
conflict with the best interests of Employer.
2.3 Employee's obligation to devote his full-time, attention and energy to
the business of Employer shall not be construed as preventing Employee from
investing his assets so long as any such investment will not require any
services on the part of Employee in the operation of the affairs of the
company(ies) or business(es) in which such investment(s) is (are) made.
3. EMPLOYER'S REIMBURSEMENTS. Employer agrees to reimburse Employee for all
reasonable business expenses incurred by Employee while on Employer's business,
in accordance with Employer's polices as may be in effect from time to time.
Employee shall maintain such records as will be necessary to enable Employer to
properly deduct such items as business expenses when computing Employer's
federal income tax.
4. COMPENSATION.
4.1 SALARY. For all services rendered by Employee under this Agreement,
Employer shall pay Employee an annual salary of $85,000 for the first year
hereunder, $90,000 for the second year, and $95,000 for the third and final year
of the term hereof. Employee shall be paid this salary in equal periodic
installments consistent with Company's normal payroll procedures, minus all
lawful and agreed upon payroll deductions.
4.2 OPTION GRANT. Employee shall also be granted, upon the commencement
of his employment and subject to approval or ratification of Employer's Board of
Directors, a stock option to purchase 3,000 shares of Common Stock of Employer
(the "Option Grant"). The exercise price, vesting schedule and other terms and
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provisions of the Option Grant shall be as reflected in Employer's standard form
Stock Option Agreement and the terms and provisions of Employer's then current
Stock Option Plan for employees.
5. OTHER AGREEMENTS.
5.1 CONFIDENTIAL INFORMATION AND ASSIGNMENTS OF INVENTION AGREEMENT.
Concurrent with the execution and delivery of this Agreement, Employee agrees to
enter into and deliver to Employer Employer's standard Confidential Information
and Assignment of Inventions Agreement.
5.2 COVENANT NOT TO COMPETE. In view of the unique value to Employer of
Employee's services, during his employment with Employer, and for a period of
twenty four (24) months after termination of his employment, Employee will not
directly or indirectly: (a) as principal, owner, employee, or agent, engage in
any business involving Internet, Intranet or Extranet based products and
services using relational database techniques and database compilation
techniques for companies located in the United States; (b) solicit for
employment or employ any employee of Employer; and (c) solicit business from
clients of Employer; provided, however, that Subsections (a) and (b) of this
Section 5.2 shall be of no force or effect if that certain merger transaction
between Employer and Pacific Analysis, Inc., effective on or about the date
hereof, is rescinded by agreement of the parties or by court order.
6. FRINGE BENEFITS. Employer and Employee agree that during the term of this
Agreement, Employee shall be entitled to participate in all fringe benefits and
incentive compensation plans as may be authorized and adopted from time to time
by the Employer for the benefit of employees generally and for which Employee is
eligible. It is understood and agreed that, as of the date hereof, Employee
shall, for purposes of such fringe benefits and incentive compensation plans,
except as otherwise required by law, be deemed to have been employed by Employer
for 39 months.
7. VACATION. Employee shall be entitled to 17 days paid vacation per calendar
year. Such time shall be accounted for pursuant and subject to Employer's
vacation policies of general applicability.
8. CONFIDENTIAL INFORMATION. It is understood and agreed that as a result of
Employee's employment hereunder, Employee will be acquiring and making use of
confidential information about Employer's business as well as financial
information. Employee agrees that he will respect the confidences of Employer
and will not at any time during or within one (1) year following the period of
his employment hereunder, directly or indirectly divulge or disclose for any
purpose whatsoever or use for his own benefit, any confidential information that
has been obtained by or disclosed to Employee as a result of his employment
hereunder. "Confidential information" as used herein does not include
information that is in the public domain and information received by Employee
from third parties who have the right to disseminate the information. The
covenant of this Section 8 is in addition to and in no way qualifies or limits
the terms of the Confidential Information and Assignment of Inventions Agreement
referred to in Section 5 above.
9. TERMINATION. This Agreement shall be terminated upon the occurrence of any
one of the following events:
9.1 Death of Employee.
9.2 If Employee shall have been incapacitated from illness, accident or
other disability and unable to perform his normal duties hereunder for a
cumulative period of three (3) months in any period of six (6) consecutive
months, upon Employer or Employee giving the other party not less than thirty
(30) days' written notice. In the event of such termination, Employee shall be
entitled to all benefits due Employee under any accident, sickness, disability,
health or hospitalization plan or insurance policy of Employer, if any, then in
effect.
9.3 Expiration of this Agreement or any renewal or extension thereof.
9.4 By Employee, upon Employer receiving ninety (90) days' notice as
provided in Section 11.3 of this Agreement.
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9.5 By Employer for cause. For purposes of this subsection, "cause"
includes the following:
(a) Breach by Employee of any material provision of this Agreement,
which breach is not cured within thirty (30) days notice as provided
in Section 11.3 of this Agreement (or, where such breach is not
curable within 30 days, Xx. Xxxxx has not taken adequate steps to
commence cure within a reasonable time) ;
(b) Material violation by Employee of any statutory or common law
duty of loyalty to Employer; or
(c) Personal or professional conduct of Employee, which, in the
reasonable and good faith judgment of Employer, after a thorough
investigation, injures or tends to injure the reputation of Employer
or otherwise adversely affects the interests of Employer. Such
conduct may include, but is not limited to, dishonesty, chronic
absenteeism, alcoholism, drug addiction, and conviction of a felony or
misdemeanor involving moral turpitude.
9.6 Upon the cessation of business by Employer; provided, however, that
the confidentiality provisions contained in Section 8 of this Agreement and the
provisions of the Confidential Information and Assignment of Inventions
Agreement referred to in Section 5 above shall continue in full force and effect
according to its terms, until Employer or its successor(s) in interest liquidate
as a going concern.
9.7 Upon the voluntary retirement of Employee.
10. EFFECT OF TERMINATION. Upon termination of Employee's employment, Employer
agrees to pay Employee all salary or other remuneration which is due and owing
to Employee as of the date of termination, less legal deductions or offsets
Employee may owe to Employer for such items as salary advances or loans.
Employee agrees that his signature on this Agreement constitutes his
authorization for all such deductions. Employee agrees to return all of
Employer's property of any kind which may be in Employee's possession. In the
event of termination of this Agreement, the terms and provisions of this
Agreement shall also terminate, with the exception of the confidentiality
provision contained in Section 8 and the provisions of the Noncompetition
Agreement and the Confidential Information and Assignment of Inventions
Agreement referred to in Section 5 above. Such provisions shall continue in
full force and effect according to their terms.
11. CONSTRUCTION OF AGREEMENT.
11.1 ESSENTIAL TERMS AND MODIFICATION OF AGREEMENT. It is understood and
agreed that the terms and conditions described in this Agreement and the
agreements expressly referenced herein constitute the essential terms and
conditions of the employment arrangement between Employer and Employee, all of
which have been voluntarily agreed upon. Employer and Employee agree that there
are no other essential terms or conditions of the employment relationship that
are not described or referenced within this Agreement, and that any change in
the essential terms and conditions of this Agreement or any such referenced
agreement will be written down in a supplemental agreement which shall be signed
by both Employer and Employee before it is effective.
11.2 SEVERABILITY. If any term, covenant, condition or provision of this
Agreement or the application thereof to any person or circumstance shall, at any
time, or to any extent, be determined invalid or unenforceable, the remaining
provisions hereof shall not be affected thereby and shall be deemed valid and
fully enforceable to the extent permitted by law.
11.3 NOTICES. Any notice hereunder shall be sufficient if in writing and
delivered to the party or sent by certified mail, return receipt requested and
addressed as follows:
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(a) If to Employer: xxxx.xxx Corporation
0000 Xxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxx Xxxxxxxxxx, CFO
(b) If to Employee: Xxxxxxx X. Xxxxx, Xx.
0000 Xxxxxxxxx Xxx X.X.
Xxxxxxxx, XX 00000
Either party may change the address herein specified by giving to the other,
written notice of such change.
11.4 GOVERNING LAW. This Agreement is made and shall be construed and
performed under the laws of the State of Washington.
11.5 WAIVER OF AGREEMENT. The waiver by Employer of a breach of any
provision of this Agreement by Employee shall not operate or be construed as a
waiver by Employer of any subsequent breach by Employee.
11.6 CAPTIONS. The captions and headings of the Sections of this Agreement
are for convenience and reference only and are not to be used to interpret or
define the provisions hereof.
11.7 ASSIGNMENT AND SUCCESSORS. The rights and obligations of Employer
under this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of Employer. The rights and obligations of Employee
hereunder are nonassignable. Employer may assign its rights and obligations to
any entity in which Employer or a company affiliated to Employer, has a majority
ownership interest.
DATED this 13th day of February, 1998.
EMPLOYEE: EMPLOYER:
Xxxxxxx X. Xxxxx, Xx. xxxx.xxx Corporation
/s/ Xxxxxxx X. Xxxxx, Xx. /s/ Xxxxxx X. Fine
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Xxxxxxx X. Xxxxx, Xx. By Xxxxxx X. Fine
Its: CEO and President
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