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Employment, Non-disclosure And Non-competition Agreement

NonDisclosure Agreement NDA

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 This NonDisclosure Agreement NDA involves

INTERACTIVE INTELLIGENCE INC

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Title: EMPLOYMENT, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT
Governing Law: Indiana     Date: 3/16/2010
Industry: Software and Programming     Sector: Technology

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Exhibit 10.40

 

 

EMPLOYMENT, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT

 

This EMPLOYMENT, NON-DISCLOSURE NON-COMPETITION AGREEMENT (this “Agreement”) is made and entered into as of March 04, 2008  (the “Effective Date”), by and between INTERACTIVE INTELLIGENCE, INC., an Indiana corporation having its principal place of business in Indianapolis, Indiana ("Interactive"), and William Gildea III (“Employee”).

 

Recitals

 

A.   For purposes of this Agreement, the term the “Company” means Interactive and/or each of its direct or indirect subsidiaries and/or any affiliate entity in which Interactive directly or indirectly owns a controlling interest or that Interactive otherwise controls provided that Employee is employed by, provides services for the benefit of, or receives or has access to confidential information concerning such subsidiary or affiliate at any time from the date of this Agreement until Employee is no longer employed with any Interactive-related entity.

 

B.   Employee desires to be employed or to continue to be employed by the Company.  The Company desires to employ or to continue to employ Employee provided it is afforded the protections of this Agreement.  In the course of Employee’s employment by the Company, Employee (i) will have access to and will acquire certain trade secrets and confidential information of the Company, (ii) may create inventions, developments or works relating to the Company’s business and (iii) will help develop and maintain goodwill with the Company’s customers.

 

C.   To induce the Company to employ or to continue to employ Employee and give Employee access to certain of the Company’s trade secrets, confidential information and customer relationships, Employee is willing to enter into this Agreement for the protection of the Company’s trade secrets, confidential information, intellectual property and goodwill.

 

Agreement

 

In consideration of the foregoing recitals, the Company’s employment of Employee, and the promises and covenants contained in this Agreement, Interactive and Employee agree as follows:

 

1.   Employment.   Pursuant to the terms and conditions of this Agreement, the Company agrees to employ Employee and Employee agrees to be employed by the Company for a period commencing on the Effective Date and continuing until terminated by either party.  Employee will serve initially in the position designated in the Initial Position, Compensation and Benefits Schedule attached hereto as Schedule A ("Schedule A") and will have those duties and responsibilities that the Company assigns to Employee from time to time.  The Company shall have the right in its sole discretion to assign Employee a different position or title, or new or different duties and responsibilities, during Employee's employment with the Company.

 

2.   Compensation.   As remuneration for all services to be rendered by Employee during Employee's employment under this Agreement, and as consideration for complying with the covenants herein, the Company will pay and provide to Employee the following:

 

a.   Salary.   During Employee's employment, the Company shall pay Employee a salary or other base rate compensation.  Employee's initial salary or other base rate compensation as of the Effective Date is set forth in Schedule A.  The Company and Employee acknowledge and agree that the Company, in its sole discretion, may adjust the amount of Employee's salary or other base rate compensation (or any other elements of compensation) from time to time during Employee's employment with the Company.  The salary or base rate compensation shall be paid to Employee consistent with the customary payroll practices of the Company.

 

b.   Benefits.   During Employee's employment, Employee will be entitled to participate in the Company's employee benefit plans to which other employees of the Company are generally entitled to participate; provided, however, Employee's entitlement to participate in such benefit plans is subject to the eligibility requirements and other provisions of such benefit plans.  The employee benefit plans in which Employee will initially be entitled to participate, subject to the eligibility requirements and other provisions of such plans, are identified in Schedule A.  Employee understands and agrees that the Company, in its sole discretion, may change, amend or discontinue any of its employee benefit plans or programs at any time during Employee's employment with the Company, and nothing contained in this Agreement shall obligate the Company to institute, maintain or refrain from changing, amending or discontinuing any benefit plan or program.

 

3.   Termination.   The Company and Employee acknowledge and agree that Employee's employment is on an at-will basis, and, accordingly, either the Company or Employee may terminate the employment relationship at any time for any reason, or no reason, with or without cause, and with or without advance notice.  This Agreement does not guarantee employment for any specific duration.

 

4.   Best Efforts and Duty of Loyalty.   During Employee’s employment with the Company, Employee will:  (a) devote Employee’s best efforts to the furtherance of the business of the Company; (b) will not engage, directly or indirectly, in any activity, employment or business venture, whether or not for remuneration, that is competitive with the Company’s business in any respect; and (c)  will not take any action, or make any omission, that deprives the Company of any business opportunities or otherwise act in a manner that conflicts with the best interest of the Company or is detrimental to the business of the Company.

 

5.   Company Property.   Employee acknowledges and agrees that all tangible materials, equipment, documents, copies of documents, data compilations (in whatever form), and electronically created or stored materials that Employee receives or makes in the course of Employee’s employment with the Company are and shall remain the property of the Company, and Employee shall immediately return such property to the Company upon the Company’s request or upon termination of Employee’s employment with the Company.

 


 

6.   Intellectual Property.

 

a.   As used in this Agreement, the term “Inventions” means any and all discoveries, inventions, developments, concepts, ideas and improvements related to Company’s business, actual or contemplated, whether patentable or not, including, but not limited to, business processes and methods, product concepts, product line extensions, new product formulations as well as improvements to any of the foregoing or know-how related thereto.  All Inventions made or conceived by Employee, either solely or jointly with others, during Employee’s employment by the Company, which are (1) related to the Company’s present business or future business which the Company had under consideration while Employee was employed by the Company, or (2) made by Employee in the course of Employee’s employment or with the use of the Company’s facilities, materials or personnel, and whether patented or not, are solely the property of the Company.  Employee will, without royalty or other consideration:  (i) inform the Company promptly and fully of such Inventions by written reports, setting forth in detail the procedures employed and the results achieved, (ii) assign, and does hereby assign, to the Company all Employee’s right, title and interest in and to such Inventions and applications for United States and foreign Letters Patent, any United States and foreign Letters Patent and renewals thereof granted upon such Inventions, (iii) assist the Company or its nominees, at the expense of the Company, to obtain such United States and foreign Letters Patent for such Inventions as the Company may elect and (iv) execute, acknowledge and deliver to the Company at its expense such written documents and instruments and do such other acts as may be necessary in the opinion of the Company to obtain and maintain United States and foreign Letters Patent upon such Inventions and to vest the entire right and title thereto in the Company and to confirm the complete ownership by the Company of such Inventions.

 

b.   As used in this Agreement, “Works” means all works of authorship fixed in a tangible medium of expression by Employee which are made during Employee’s employment by the Company and which (1) are made by Employee during the course of or which result from Employee’s employment by the Company, or (2) relate to the Company’s present business or future business which the Company had under consideration while Employee was employed by the Company including, but not limited to, flow charts, algorithms, computer programs, computer source codes and object codes, notes, drawings, memoranda, correspondence, documents, records and notebooks.  All Works created by Employee are and will remain exclusively the property of the Company.  Each such Work is a “work made for hire,” and the Company may file applications to register copyright as author thereof.  To the extent such Work cannot be a “work made for hire” under the U.S. Copyright Act, all of Employee's right, title and interest in any such Work shall be and hereby is assigned and transferred to Company.  Employee will do whatever reasonable acts the Company requests to secure or aid in securing copyright protection and will assist the Company or its nominees in filing applications to register claims or copyright in such Works.  Except in connection with the performance of Employee's duties for the Company, Employee will not reproduce, distribute, display publicly or perform publicly, alone or in connection with any data processing system, any Works of the Company without written permission from the Company to do so.  Upon the Company’s request or upon termination of Employee’s employment, Employee will immediately deliver to the Company all Works and copies thereof then in Employee’s possession or under Employee’s control.

 

c.   Employee hereby assigns and transfers to the Company any “moral” rights Employee may have in any Inventions or Works under any copyright, patent or other law, whether United States or foreign.  Employee agrees to waive and never assert any such “moral” rights in any Inventions or Works during or after the termination of employment with the Company.  Employee agrees that the Company and its licensees have sole discretion with regard to how and for what purposes, if any, any Inventions or Works are used or distributed

 

d.   In the event the Company is unable, for any reason whatsoever, to secure Employee’s signature to any lawful or necessary documents required to apply for, prosecute, perfect, or assign any United States or foreign application for Letters Patent, trademark or copyright registration, Employee hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as Employee’s agent and attorney in fact, to act for and on Employee’s behalf, to execute and file any such application and to do all other lawfully permitted acts to further the prosecution, issuance or assignment of Letters Patent on such Developments, or registrations for trademark or copyright on such Developments, with the same force and effect as if executed by Employee.  Employee hereby waives and quitclaims to Company any and all claims, of any nature whatsoever, which Employee may now have or may hereafter have for infringement of any patent, trademark, or copyright resulting from any such application.

 

7.   Non-Disclosure of Confidential Information.   As used in this Agreement, the term “Confidential Information” means any and all of the Company’s trade secrets, confidential and proprietary information and all other non-public information and data of the Company or its businesses, including, without limitation, lists of customers, information pertaining to customers, information received from customers, information pertaining to business partners, information received from business partners, information received from any third parties that the Company is obligated to keep confidential, marketing plans and strategies, information pertaining to suppliers, pricing information, cost information, research and development information, processes, programs, inventions, business plans, financial information, data compilations, personnel information and information about prospective customers or prospective products and services, whether or not reduced to writing or other tangible medium of expression, including work product created by Employee in rendering services for the Company.  During Employee’s employment with the Company and thereafter, Employee will not use or disclose to others any of the Confidential Information, except as authorized in writing by the Company or in the performance of work assigned to Employee by the Company.  Employee agrees that the Company owns the Confidential Information and Employee has no rights, title or interest in any of the Confidential Information.  Additionally, Employee will abide by the Company’s policies protecting the Confidential Information.  At the Company’s request or upon termination of Employee’s employment with the Company, Employee will immediately deliver to the Company any and all materials (including copies and electronically stored data) containing any Confidential Information in Employee’s possession, custody or control.  Upon termination of Employee’s employment with the Company for any reason, Employee will, if requested by the Company, provide the Company with a sworn written statement disclosing whether Employee has returned to the Company all materials (including all copies and electronically stored data) containing any Confidential Information previously in Employee’s possession, custody or control.  Employee’s confidentiality obligations shall continue as long as the Confidential Information remains confidential, and shall not apply to information which becomes generally known to the public through no fault or action of Employee or others who were under confidentiality obligations as to such information.

 

8.   Non-Competition Covenants.   Employee agrees to the following non-competition covenants:

 

a.   During Employee's employment with the Company and for a period of twelve (12) months immediately after the termination of such employment, Employee will not provide, sell,  market, assist in the provision, selling or marketin


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