Exhibit 10.30
PRIMUS KNOWLEDGE SOLUTIONS,
INC.
KEY EMPLOYEE
NON-COMPETITION
AND
NON-SOLICITATION
AGREEMENT
This Key Executive Non-Competition
and Non-Solicitation Agreement (“Agreement”) is dated
as of November 13, 2003, and is made between Primus Knowledge
Solutions, Inc. , a Washington corporation, and all of its now
existing and future acquired affiliates, including wholly owned
subsidiaries (“Primus”), and Michael A. Brochu
(“Executive”).
Background
A. Primus develops, markets, and licenses
customer service and knowledge management software that enables
support organizations to access, analyze and improve knowledge
worldwide, through self service to assisted service. Primus has
invested and continues to invest substantial resources in (a) the
development, marketing, and licensing of its software, (b) the
provision of related services, including without limitation support
and maintenance services, software implementation services, and
customer education and training, and (c) the training and retention
of its employees.
B. Executive, as Primus’ CEO and
president, performs key management functions at Primus. Executive
has served as Primus’ senior executive officer for over six
(6) years. During the course of Executive’s employment,
Executive has and will become well acquainted with Primus’
current and proposed technology and business goals and strategies.
During the course of Executive’s employment, Executive has
developed and will develop important relationships with
Primus’ customers and potential customers, with Primus’
vendors, and with other Primus employees.
C. Primus and Executive have agreed that
Primus’ business and the goodwill associated with
Primus’ business will suffer irreparable harm if Executive
competes with Primus during Executive’s employment and for a
certain period following its termination, and if Executive solicits
Primus’ employees to terminate their employment with Primus.
Primus and Executive have agreed to protect Primus’ business
by entering into this Agreement, and by placing restrictions on
Executive’s current and post-employment activities to the
extent specified in this Agreement.
Agreement
For good and valuable consideration,
the receipt and sufficiency of all of which they each acknowledge,
Primus and Executive agree as follows:
Section 1. Definitions
For purposes of this Agreement, the
following capitalized terms shall have the following
meanings:
1.1 Executive Affiliate .
“Executive Affiliate” means (i) an Entity in which
Executive or a member of Executive’s immediate family owns
equity possessing at least one half of one percent (0.5%) of the
total combined voting power of all classes of equity entitled to
vote, or rights to acquire such equity; or (ii) any person who
provides services to any such Entity as an employee or
contractor.
1.2 Competitive Activity .
“Competitive Activity” means
(a) the development, marketing,
distribution, licensing and/or other commercialization
of:
(i) computer software programs which
enable users to access, analyze and/or improve knowledge, including
without limitation in customer service and/or information
technology help desk applications and whether through Internet
based self-service or assisted service; and/or
(ii) software which is a
“derivative” (as such term is understood under the
United States Copyright Act, 17 U.S.C. 101 et seq .)
of all and any software developed by or on behalf of the Primus
during Executive’s employment, and derivatives thereof up to
and including the date Executive’s employment with Primus
ends for any reason; and/or
(iii) any and all products and
services that are competitive to those marketed, sold and/or
distributed by Primus at the time of Executive’s employment
with Primus ceases for any reason; and/or
(b) with respect to any of the
software described in (a) above, the provision of:
(i) support and/or maintenance
services;
(ii) software implementation
services; and/or
(iii) customer education and
training.
1.3 Entity . “Entity” means
any partnership, company, corporation, trust, association or other
entity or undertaking whatsoever.
Section 2. Non-Competition
From and after the date of this
Agreement, and for a period of three (3) years following the
termination of Executive’s employment with Primus, howsoever
arising, Executive shall not, and shall ensure that no Executive
Affiliate shall, directly or indirectly own a controlling interest
in, manage, operate, control, or otherwise be connected with, as
director, partner, consultant, employee, or agent, any business
Entity which is engaged, or proposes to engage, in any Competitive
Activity in any country in the world in which Primus has generated,
or reasonably anticipates generating during the period ending on
the first anniversary of the termination of Executive’s
employment with Primus, revenues in excess of One Hundred Thousand
U.S. Dollars (US $100,000) per year. Those countries include,
without limitation, the United States, all countries of the
European Union on the date hereof, Canada, Japan and India.
Executive and Primus each acknowledge that the provisions of this
Section 2 are required for the purpose of preserving the goodwill
of Primus’ current and future business.
Section 3. Non-Solicitation of Primus
Customers
From and after the date of this
Agreement, and for a period of three (3) years following the
termination of Executive’s employment with Primus, howsoever
arising, Executive shall not, and shall ensure that no Executive
Affiliate shall, directly or indirectly (a) solicit any Entity with
which Executive had more than minimal contact while employed by
Primus to terminate such Entity’s contractual and/or business
relationship with Primus, nor (b) interfere with or disrupt or
attempt to interfere with or disrupt any such
relationship.
Section 4. Non-Solicitation of Primus
Executives
From and
