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EXHIBIT 10.7
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") dated this 25th day of
January, 1 999 between Colomotion, Inc., a California corporation (the
"Company") and Xxxxxxx X. Xxxxx, General Partner for the Xxxxx Family Limited
Partnership (the "Executive").
W I T N E S S E T H :
WHEREAS, the Company is engaged in and seeks to expand its business in
the telecommunications industry. And the Executive has substantial experience in
managing and operating businesses or being a senior management executive in the
telecommunications industry that would be very beneficial to the Company's
operations and future profitability.
WHEREAS, the Company believes its progress and its prospects for future
development and growth are significantly enhanced if the Executive were to serve
as the Company's Chairman and Chief Executive Officer.
WHEREAS, the Board of Directors of the Company (the "Board") has
authorized this Agreement with the Executive and has approved its terms and
conditions, all of which the Board has found to be reasonable, proper, and in
the best interest of the Company;
WHEREAS, the Company and the Executive desire to set forth the terms and
conditions pursuant to which the Executive will be employed by the Company; and
WHEREAS, the Executive is willing to be employed by the Company pursuant
to the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the foregoing premises and of the
mutual covenants and undertakings contained herein, the parties to this
agreement hereby agree as follows:
ARTICLE I
EMPLOYMENT DUTIES AND COMPENSATION
1.01 (a) Initial Term of Employment and Duties:
The Company and the Executive hereby agree that for a three (3) year
period beginning January 25,1999 and terminating on January 24, 2002 (the
"Termination Date"), the Company shall employ the Executive and the Executive
shall perform services for the Company at the Company's headquarters location. A
120 day transition period will be provided to Executive so that Executive may
complete projects outside the scope of Executive's responsibilities with the
Company. It is estimated that these activities will consume approximately 25% of
Executive's time.
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(b) Renewal of Term:
Unless the Company shall have given the Executive written notice at
least 180 days poor to the Termination Date, this Agreement shall renew and
continue in effect for additional one-year periods (and all provisions of this
Agreement shall continue in full force and effect), and each successive
anniversary from such original Termination Date shall thereafter be designated
as the "Termination Date" for all purposes under this Agreement, provided,
however, that the Company may, at its election at any time after the expiration
of the initial term of this Agreement, give the Executive notice of termination,
in which event the Executive shall continue to receive, as severance pay, his
base compensation and benefits set forth in Paragraphs (d) and (f) below for 12
full months following such notice of termination. During such 12 month severance
period, the Board may modify the Executive's duties as described in Paragraph
(c) below without triggering the provisions of Section 2.03 below. The Company
agrees that it will not unreasonably withhold any annual renewals of this
Agreement.
(c) Duties:
As the Executive shall be entitled to exercise all rights and power and
shall have all the privileges and authorities commensurate with his offices,
including without limitation (i) the fall authority for the operations and
conduct of the business of the Company; (ii) general decision-making authority
with respect to the day-to-day operations of the business of the Company; (iii)
the engagement, retention, and termination of employees and independent
contractors of the Company, the setting of the compensation and other material
terms of employment or engagement of employees and independent contractors and
the establishment of work rules for employees; and (iv) the initiation,
development, and implementation of new business, subject only to the supervision
of the Board. The Executive shall reader his services hereunder in the
headquarters city (or other headquarters location approved by the Board) subject
to such reasonable travel as may be required to perform his duties hereunder.
During the term of employment, the Executive shall devote such time as is
required to perform his services hereunder.
(d) Compensation:
During the initial term of this Agreement and for each renewal term
thereafter, the Executive's annual gross base salary pursuant to this agreement
shall be as set forth below:
(i) for the first year period immediately following the
beginning date above, $225,000, payable at a rate of
$18,750 per month; such monthly salary to be accrued
until Company secures a second round of financing at
which time a lump sum payment of accrued salary will be
paid and subsequent salary will be payable in accordance
with the Company's regular payroll practices.
(ii) for the second year period, $250,000, payable at a rate
of $20,833.33 per month.
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(iii) for the third year period, $300,000, payable at a rate
of $25,000 per month.
(iv) upon completion of an IPO during the initial or
subsequent period, the Executive's gross annual base
salary shall automatically increase to $360,000, payable
$30,000 per month.
Nothing herein shall be deemed to restrict the right of the Board to
increase the Executive annual gross base salary, bonuses and fringe benefits or
grant stock options at any time in its discretion.
(e) Bonuses:
The Executive shall be entitled to such bonuses as are described in
Exhibit A attached hereto.
(f) Fringe Benefits:
The Company shall provide to the Executive, during the term of this
employment hereunder:
(i) All so-called "fringe benefits" including, but not
limited to, participation in pension plans, profit
sharing plans, hospitalization insurance, medical
insurance, dental insurance, disability insurance, life
insurance, and the like that are granted to or provided
for eligible employees of the Company, or that may be
granted to or provided for during the term of the
Executive's employment under this Agreement; and
(ii) Four weeks paid vacation.
(g) Initial Options:
In consideration for his services hereunder, the Company hereby grants
to the Executive an option to acquire the Company's common stock, as described
in Exhibit B.
(h) Loans:
Any loans granted to Executive are detailed in Exhibit C.
(i) Travel and Reimbursement of Expenses:
The company agrees to pay to on behalf of Executive the cost of travel
and other expenses incurred by Executive on the Company's behalf. It is
understood
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that the Company will reimburse executive for reasonable travel expenses between
the Company and Executive's primary residences provided that reasonable efforts
are made to manage the costs associated with travel.
ARTICLE II
RIGHTS ON TERMINATION OF EMPLOYMENT
2.01 Rights to Terminate Employment:
The Executive may at his option, terminate his employment under this
Agreement upon not less than 60 days notice to the Company given at any time,
provided, however, that the Board of Directors may accept the Executive's
resignation, or may reduce his duties and responsibilities, at any time
following receipt of such notice and this Agreement shall terminate immediately
upon such acceptance except that the provisions of Article 3.01 and 3.02 below
shall survive any such termination for the periods provided therein.
2.02 Disability:
If, because of mental or physical disability, the Executive shall be
incapable for a period of six consecutive months (the "Disability Period") of
performing his obligations and agreements hereunder (hereinafter referred to as
a "Disability") during which period the provision of this Agreement will
continue to apply in full force and effect, then at the election of the Company
expressed to the Executive in writing, this Agreement shall terminate at the end
of such Disability Period, except that the Executive's benefits shall continue
until the end of this Agreement, and the Executive shall receive one-half of his
base salary then in effect until the end of this Agreement, together with the
bonuses described on Exhibit A hereto. Additionally, any stock options that are
vested or any stock previously exercised but not granted shall be vested and
granted to the Executive upon termination by the Company. The determination of
whether the Executive has suffered a Disability shall be made by three licensed
medical doctors: one chosen by the Company, one chosen by the Executive, and one
chosen by the two doctors so chosen.
2.03 Rights Upon Termination of Employment Without Cause Prior to the
Termination:
The company may terminate the executive's services without Cause (as
defined in Section 4.20 below) by delivering written notice of such termination
to the Executive. In addition, any (i) material change of the Executive's title,
responsibilities, or authority by the Board without the Elective's concurrence
which is not cured within 30 days after notice by the Executive; or (ii)
material breach by the Company of this Agreement which continues for 30 days
after notice by the Executive (provided that the Executive shall not also be in
breach of this Agreement). shall be deemed termination by the Company without
cause. In the event of termination pursuant to clauses (i) or (ii) of the
preceding sentence, the Executive shall be entitled to give notice of
termination, which notice shall have the same effect as a notice delivered by
the Company.
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If, prior to the Termination Date, the Company terminates the
Executive's employment for any reason other than Cause or Disability, then the
Company shall:
(i) continue to pay the Executive (in the same manner as
prior to such termination) after the date of such
termination the compensation provided under Section 1.01
above through the Termination Date as if the Executive
had been employed hereunder during such period;
(ii) pay of all bonuses quarterly as if the mutually agreed
upon targets were met; and
(iii) provide the Executive with continued coverage through
the Termination Date under any employee benefit plan (as
such term is defined in Section 3(3) of the Date
Executive Retirement Income Security Action of 1974, as
amended) then maintained by the Company and which the
Executive then participates or any successor plan
thereof. Notwithstanding, 2.03 iii above, the Company
hereby agrees to maintain the Executive's
hospitalization/ medical/dental/disability and life
insurance policy in effect at the time of termination
through the full period of this Agreement, to continue
to pay any premium to maintain the policy through the
full period of this Agreement, and the Executive may, at
his option and his expense at the end of this Agreement
or termination, continue the policy without interruption
until his death; and
(iv) all stock options will immediately vest and the stock
granted to the Executive upon his exercise of such
options, such stock to be unrestricted except for any
governmental restrictions and registered if the Company
is a public company at the time of termination or
subsequently becomes public.
2.04 Right Upon Termination of Employment For Cause:
The Company shall have the right at any time, by giving written notice
to Executive to terminate Executive's employment for cause: Cause shall be
deemed to have occurred if the Executive is convicted of a felony or a crime
involving fraud, gross negligence or significant mismanagement of the business.
Upon such termination for cause, Executive shall be paid his current monthly
salary, any bonuses earned up to that point and Executive may exercise any
unexercised options that are vested.
2.05 Beneficiaries of Payments:
If the Executive shall die before receiving all payments to be made by
the Company to him pursuant to any of the provisions of this Agreement, all such
payments or any remaining payments, as the case may be, shall be made by the
Company to such beneficiary or beneficiaries as the Executive may designate from
time to time by notice in writing filed with the Company, or if the
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Executive shall fail or fail effectively to designate a beneficiary, or if no
beneficiary shall survive the date when the last payment is to be made, any
remaining payments shall be made to the Executive's estate.
ARTICLE III
PROTECTIONS/CONFIDENTIALITY
3.01 Covenants Regarding Protections:
The Executive hereby agrees and covenants to the following:
(a) Solicitation of Customers and Registered Primary Vendors:
During the term of this Agreement and for a period of 12 months
following the termination of this Agreement by either party (other than a
termination of this Agreement by the Company's failure to renew it pursuant to
Section 1.01(b) above), the Executive hereby agrees not to solicit or contact in
any manner that could be reasonably construed as a solicitation, any past or
current customer or registered primary vendor of the Company for purposes of
encouraging such customer to refrain from purchasing products or services from
the Company or for purposes of encouraging such vendor to refrain from providing
services or selling products to the Company. Notwithstanding the above, if the
Executive should leave the Company and join a competitive company, it is
recognized by the parties that the industry utilizes a variety of marketing and
sales techniques such as direct mail, telemarketing, advertising, etc. and the
customer might be contacted by the company that the Executive joins as a matter
of course and in this event this practice would not be considered a violation of
this Agreement.
(b) Solicitation of Executives:
During the term of this Agreement and for a period of 6 months following
the termination of this Agreement by either party (other than a termination of
this Agreement by the Company's failure to renew it pursuant to Section 1.01 (b)
above), the Executive hereby agrees not to employ, either directly or indirectly
through any entity in which the Executive is an executive officer, and agrees
not to solicit, or contact in any manner that could reasonably be construed as a
solicitation, any executive officer or director of the Company for purposes of
encouraging such person to leave or terminate his employment with the Company.
3.02 Confidentiality: Competitive or Personal Disparagement:
The Executive and the Company hereby agree that neither will, during the
term of the Executive's employment or at any time following the termination
hereof for any reason, do or cause to have done any of the following:
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(i) without the prior written consent of the other party,
use for its own purposes or disclosure to any person or
other entity any confidential and/or proprietary
information of the Company or the Executive;
(ii) each party agrees that it will not disparage the other
parry; and
(iii) at the termination of this Agreement, each party will
present to the other party a written statement of
exactly what can be said about each party upon third-
party inquiry about the Executive or the Company. Each
party will name a spokesperson to handle all inquiries
about the Company or the Executive and only the named
spokesperson is allowed to comment unless changed by
mutual written consent.
ARTICLE IV
4.01 Indemnifications:
The parties agree that the Executive shall be indemnified by the Company
against any liability asserted against the Executive (and expenses, including
without limitations, reasonable attorney's fees, court costs, and other legal
expenses incurred in connection therewith) by reason of his position with the
Company or any subsidiary to the full extent a California corporation may
indemnify an officer or director under the California General Corporate Law.
4.02 No Obligation to Mitigate Damages:
In the event of a termination of employment upon a change in control,
the Executive shall not be required to mitigate damages by seeking other
employment.
4.03 Arbitration and Remedies:
(a) All disputes, differences, or questions between the parties
concerning the construction, interpretation, and effect of the Agreement, or the
rights, obligations and liabilities of the parties, and which have as their sole
remedy monetary damages, will be settled by arbitration in the City of Bethesda,
Maryland, or such other place as the parties may mutually agree. In the case of
a dispute, difference, or question, one party shall appoint its arbitrator and
shall notify the other party in writing (the "Arbitrations Notice") of the
appointment and the matter to be determined. If the party receiving the
Arbitration Notice fails to appoint an arbitrator and notify the first party of
such appointment for 15 days after receipt of such notice, the decision of the
arbitrator appointed by the first of the parties shall be final and binding on
both of the parries hereto. If two arbitrators are appointed, they shall meet
within 30 days after appointment of the second arbitrator. If they do not agree
as to their decision, they shall choose a third arbitrator, failing which, third
arbitrator shall be selected in accordance with the rules of the American
Arbitration Association. The arbitration shall
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be held as promptly as possible at such time and place in the designated city as
the arbitrators may determine. The decision of the arbitrators so appointed, or
a majority of them, will be final and binding upon the parties hereto. Judgment
upon the award may be entered in any court having jurisdiction, or application
may be made to such court for judicial acceptance of the award and an order to
enforcement, as the case may be. If the arbitrator appointed refuses to act or
is incapable of acting or dies, a substitute for him shall be appointed in the
manner provided above.
(b) Each of the parties to the Agreement will be entitled to enforce its
rights under the Agreement specifically, to recover damages by reason of any
breach of any provision of this Agreement and to exercise all other rights
existing in its favor. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of the
Agreement and that any party may in its sole discretion apply for specific
performance and/or injunctive relief in either a federal or state court in order
to enforce or prevent any violations of the provisions of this Agreement.
4.04 Legal Cost and Indemnification:
The Company shall pay the Executive all reasonable legal fees and
expenses incurred by him as a result of his termination without Cause or
Disability, including but not limited to, all such fees and expenses, if any,
incurred in contesting or disputing any such termination or in seeking to obtain
or enforce any right or benefit provided in this Agreement through legal process
or arbitration, if the Executive shall be wholly successful on the merits.
4.05 Notices:
(a) Any notice to be given concerning this Agreement shall be given in
writing and either (i) sent by certified or registered mail, return receipt
requested, postage prepaid; or (ii) hand delivered to the recipient personally.
In the case of notice sent by mail, the date of the giving of the notice shall
be deemed to be (i) the date of the postmark of the executed return receipt; or
(ii) the date of actual receipt if not postmarked by the United States Postal
Service. In the case of notice being hand delivered, a written dated receipt
shall be given therefor. Hand delivery of any notice to the Company shall be
delivered to the Company's chief financial officer personally.
(b) Notice shall be sent as follows:
If to the Executive: Xxxxxxx X. Xxxxx, General Partner
Xxxxx Family Limited Partnership
0000 Xxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
If to the Company:
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(c) By giving notice to all other parties, any party may, from time to
time, designate a different address to which notice by mail to such party shall
be sent.
4.06 Successors d Assigns; Survival in Case of Merger:
(a) This Agreement is intended to bind and inure to the benefit of, and
be enforceable by, the Executive and the Company and their respective successors
and assigns.
(b) Without limiting the effect of the foregoing, this Agreement and all
of its terms shall survive, and be enforceable by the Executive,
notwithstanding any merger, consolidation, combination or reorganization of the
Company with or into any other entity or person ("Surviving Entity"), including
but not limited to any other corporation, partnership, or other similar
organization, whether or not the Company is the Surviving Entity of such merger,
consolidation, combination, or reorganization. The Surviving Entity shall be
bound by this Agreement to the same extent as if such Surviving Entity had
entered into the Agreement with the Executive on the Effective Date.
(c) As a condition of any merger, consolidation, combination or
reorganization of the Company as discussed in Section 4.06(b) above, the Company
agrees to include, as a condition of consummation of such merger, consolidation,
combination, or reorganization, an undertaking by the Surviving Entity pursuant
to which the Surviving Entity shall agree in writing to be bound by this
Agreement.
4.07 Amendment Waiver:
No amendment or other modification of this Agreement nor any waiver of
any term of this Agreement shall be valid unless it is in writing and signed by
the party against whom enforcement of the amendment, modification or waiver is
sought. No waiver by any party of the breach of any term contained in this
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed to be or construed as a further or continuing waiver of any such
breach of any other term of this Agreement.
4.08 Further Assurances:
Each party hereto agrees to perform any further acts and to execute and
deliver any further documents mutually agreed to in writing that may be
reasonably necessary to carry out the provisions of this Agreement.
4.09 Severability:
In the event that any of the provisions, or portions thereof, of this
Agreement are held to be unenforceable or invalid by any court of competent
jurisdiction, the validity and enforceability of the remaining provisions, or
portions thereof, shall not be affected thereby.
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4.10 Construction:
Whenever used herein, the singular number shall include the plural, and
the plural number shall include the singular.
4.11 Gender:
Any references herein to the masculine gender, or to the masculine form
of any noun, adjective, or possessive, shall be construed to include the
feminine or neuter gender and form, and vice versa.
4.12 Headings:
The headings contained in this Agreement are for purposes of reference
only and shall not limit or otherwise affect the meaning of any of the
provisions contained herein.
4.13 Multiple Counterparts:
This Agreement may be executed in multiple counterparts, each of which
shall be deemed to be an original but all of which together shall constitute one
and the same instrument.
4.14 GOVERNING LAW:
THIS AGREEMENT HAS BEEN EXECUTED IN AND SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF MARYLAND AND THE OBLIGATIONS OF THE PARTIES HERETO SHALL BE
PERFORMABLE IN XXXXXXXXXX COUNTY.
4.15 Inurement:
Subject to the restrictions against transfer or assignment as herein
contained, the provisions of the Agreement shall inure to the benefit of, and
shall be binding on, the assigns, successors in interest, personal
representatives, estates, heirs, and legatees of each of the parties hereto.
4.16 Waivers:
No waiver of any provision or condition of this Agreement shall be valid
unless executed in writing and signed by the party to be bound thereby and then
only to the extent specified in such waiver. No waiver of any provision or
condition of this Agreement shall be construed as a waiver of any other
provision or condition of this Agreement and no present waivers of any provision
or condition of this Agreement shall be construed as a future waiver of such
provision or condition.
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4.17 Entire Agreement:
This Agreement contains the entire understanding between the parties
hereto concerning the subject matter contained herein.
IN WITNESS WHEREOF, the parties to the Agreement have set their
respective hands hereto as of the date first written above.
THE EXECUTIVE
XXXXXXX X. XXXXX,
GENERAL PARTNER
XXXXX FAMILY LIMITED PARTNERSHIP
By: /s/ XXXXXXX X. XXXXX
---------------------------------
THE COMPANY
Colomotion, Inc.
By: /s/ [SIGNATURE ILLEGIBLE]
Its: Director
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EXHIBIT "A"
BONUSES
- FIRST YEAR: Executive will be eligible for a bonus of up
to $75,000 payable quarterly based upon the
completion of Company objectives and performance
criteria to be mutually agreed upon by Executive
and the Board of Directors within 60 days from
employment start date.
- SECOND YEAR: Same as first year, except bonus amount will be up
to 60% of base salary.
- THIRD YEAR: Same as first year, except bonus amount will be up
to 85% of base salary.
- NOTE: Regardless of any other objectives established, if
the Company is successful in raising $6 to $10
million of equity capital during the first four
months of Executive's tenure, the first two
quarters' objectives will be met. Furthermore, in
the event the Company is successful in raising
debt exceeding $25 million for a roll-out, then
that year's objectives are met. Moreover, in the
event the Company is successful in doing an IPO,
then that year's objectives are met.
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EXHIBIT "B"
INITIAL OPTIONS
Subject to the approval of the Company's Board of Directors, Executive
will be granted a stock option to purchase 2,848,837 shares of the Company
Common Stock, priced at the fair market value (5 cents per share) on the date of
grant (the "Stock option"). The stock options shall vest over a three year
period, with 60% of the shares vesting one year from start of employment, 20%
vesting two years from start of employment and the remaining 20% vesting three
years from the start of employment. Upon securing of second round financing of
at least $6 million, 35% out of the first-anniversary 60% will accelerate and
vest immediately. There will be no buy-back rights on such shares and the grant
of any options does not imply any right to continued employment except what is
provided herein.
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XXXX.XXX
ADDENDUM 1 TO EMPLOYMENT AGREEMENT
As a condition of my employment with XXXX.XXX, its subsidiaries,
affiliates, successors or assigns (together the "Company"), and in consideration
of my employment with the Company and my receipt of the compensation now and
hereafter paid to me by Company, I agree to the following as Addendum 1 to my
Employment Agreement with the Company dated January 25, 1999:
1. Confidential Information.
(a) Company Information. I agree at all times during the term of my
employment and thereafter, to hold in strictest confidence, and not to use,
except for the benefit of the Company, or to disclose to any person, firm or
corporation without written authorization of the Board of Directors of the
Company, any Confidential Information of the Company. I understand that
"Confidential Information" means any Company proprietary information, technical
data, trade secrets or know-how, including, but not limited to, research,
product plans, products, services, customer lists and customers (including, but
not limited to, customers of the Company on whom I called or with whom I became
acquainted during the term of my employment), markets, software, developments,
inventions, processes, formulas, technology, designs, drawings, engineering,
hardware configuration information, marketing, forecasts or other business
information disclosed to me by the Company either directly or indirectly, in
writing, orally, by drawings, or by observation of parts or equipment. I further
understand that Confidential Information does not include any of the foregoing
items which has become publicly known and made generally available through no
wrongful act of mine or of others who were under confidentiality obligations as
to the item or items involved.
(b) Former Employer Information. I agree that I will not, during my
employment with the Company, improperly use or disclose any proprietary
information or trade secrets of any former or concurrent employer or other
person or entity and that I will not bring onto the premises of the Company any
unpublished document or proprietary information belonging to any such employer,
person or entity unless consented to in writing by such employer, person or
entity.
(c) Third Party Information. I recognize that the Company has
received and in the future will receive from third parties their confidential
or proprietary information subject to a duty on the Company's part to maintain
the confidentiality of such information and to use it only for certain limited
purposes. I agree to hold all such confidential or proprietary information in
the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out my work for the
Company consistent with the Company's agreement with such third party.
2. Inventions.
(a) Inventions Retained and Licensed. I have attached hereto, as
Exhibit A, a list describing all inventions, original works of authorship,
developments, improvements, and trade secrets which were made by me prior to my
employment with the Company, which belong to me, which relate to the Company's
proposed business, products or research and development, and which are not
assigned to the Company hereunder (collectively referred to as "Prior
Inventions"); or, if such list is attached, I represent that there are no such
Prior Inventions. If in the course of my employment with the Company, I
incorporate into any invention, improvement, development, product, copyrightable
material or trade secret any invention, improvement, development, concept,
discovery or other proprietary information owned by me or in which I have an
interest, the Company is hereby granted and shall have a nonexclusive,
royalty-free, irrevocable, perpetual, worldwide license to make, have made,
modify, use and sell such items as part of or in connection with such product,
process or machine.
(b) Assignment of Inventions. I agree that I will promptly make full
written disclosure to the Company, will hold in trust for the sole right and
benefit of the Company, and hereby assign to the Company, or its designee, all
my right, title, and interest in and to any and all inventions, original works
of authorship, developments, concepts, improvements or trade secrets, whether or
not patentable or registrable under copyright or similar laws, which I may
solely or jointly conceive
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or develop or reduce to practice, or cause to be conceived or developed or
reduced to practice, during the period of time I am in the employ of the Company
(collectively referred to as "Inventions"), except as provided in Section 2(f)
below. I further acknowledge that all original works of authorship which are
made by me (solely or jointly with others) within the scope of and during the
period of my employment with the Company and which are protectible by copyright
are "works made for hire," as that term is defined in the United States
Copyright Act.
(c) Inventions Assigned in the United States. I agree to assign to the
United States government all my right, title and interest in and to any and all
Inventions whenever such full title is required to be in the United States by a
contract between the Company and the United States or any of its agencies.
(d) Maintenance of Records. I agree to keep and maintain adequate and
current written records of all Inventions made by me (solely or jointly with
others) during the term of my employment with the Company. The records will be
in the form of notes, sketches, drawings, and any other format that may be
specified by the Company. The records will be available to and remain the sole
property of the Company at all times.
(e) Patent and Copyright Registrations. I agree to assist the Company, or
its designee, at the Company's expense, in every proper way to secure the
Company's rights in the Inventions and any copyrights, patents, mask work rights
or other intellectual property rights relating thereto in any and all countries,
including the disclosure to the Company of all pertinent information and data
with respect thereto, the execution of all applications, specifications, oaths,
assignments and all other instruments which the Company shall deem necessary in
order to apply for and obtain such rights and in order to assign and convey to
the Company, its successors, assigns and nominees the sole and exclusive rights,
title and interest in and to such inventions, and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto. I further
agree that any obligation to execute or cause to be executed, when it is in my
power to do so, any such instrument or papers shall continue after the
termination of this Agreement. If the Company is unable because of my mental or
physical incapacity or for any other reason to secure my signature to apply for
or to pursue any application for any United States or foreign patents or
copyright registrations covering inventions or original works of authorship
assigned to the Company as above, then I hereby irrevocably designate and
appoint the Company and its duly authorized officers and agents as my agent and
attorney in fact, to act for and in my behalf and stead to execute and file any
such applications and to do all other lawfully permitted acts to further the
prosecution and issuance of letters patent or copyright registrations thereon
with the same legal force and effect as if executed by me.
(f) Exception to Assignments. I understand that the provisions of this
Agreement requiring assignment of Inventions to the Company do not apply to any
invention which qualifies fully under the provisions of California Labor Code
Section 2870 (attached hereto as Exhibit B). I will advise the Company promptly
in writing of any inventions that I believe meet the criteria in California
Labor Code Section 2870 and not otherwise disclosed on Exhibit A.
Dated effective as of January 25, 1999
/s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
AGREED AND ACCEPTED:
XXXX.XXX
By: /s/ XXXXX XXXXX
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Xxxxx Xxxxx, Senior Vice President
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