EXHIBIT 10.9
EMPLOYEE AGREEMENT
This employment agreement is made this 18th day of December, 2004 by and between
UGS Corp., located at 0000 Xxxxxxx Xxxxxxx, Xxxxx, XX 00000, and Xxxxx Xxxxx
("Xxxxx"), who resides at 0000 Xxx Xxxx Xxxxx, Xxxxxx, XX 00000.
Whereas, UGS Corp. wishes to employ Xxxxx as Executive Vice President, Global
Business Strategy & Marketing; and
Whereas, Xxxxx acknowledges the importance of UGS Corp. (and any of its
affiliates) (the "Company") of protecting its confidential information and other
legitimate interests;
Now, therefore, in consideration of the parties' mutual promises and, in
particular, of Xxxxx'x offer of employment by UGS, of his being granted access
to trade secrets and other confidential information of the Company, of the
Company's promise to provide not less than 30 days' notice, or pay in lieu of
notice, at Xxxxx'x then-current base rate of pay, in the event the Company
initiates termination of his employment, and for other good and valuable
consideration, the receipt and sufficiency of which each party hereby
acknowledges, the Company and Xxxxx agree as follows:
1. Position and Compensation
Xxxxx will serve as the Company's Executive Vice President, Global Business
Strategy & Marketing. His initial base annual salary will be $310,000 to be paid
in twenty-four (24) semimonthly payments. In addition to base salary, Xxxxx will
be eligible for an annual performance-based incentive opportunity equal to 70%
of his annual salary. Xxxxx will be eligible for an additional bonus amount if
the company exceeds it annual objectives. Xxxxx will also be granted 260,000
shares of UGS stock options. Furthermore, Xxxxx will have the opportunity to
participate in UGS benefit programs and paid vacation of four weeks per year.
Xxxxx will receive a sign-on bonus of $60,000 to be paid the first pay cycle
following his start date. He agrees to repay a prorated portion of this amount
if he voluntarily terminates his employment prior to 12 months employment with
UGS. Xxxxx will participate in the UGS executive relocation program with an
extension of the standard temporary living benefit of 90 days to a maximum of
270 days.
2. Conduct of Employment
Xxxxx agrees that, during employment, he will devote his full business time and
his best efforts, business judgment, skill and knowledge exclusively to the
advancement of the business and interests of the Company and to the discharge of
his duties and responsibilities for it. He agrees to comply with all policies,
practices and procedures of the Company, as these may be changed by the Company
from time to time.
3. Involuntary Termination
In the event that Xxxxx'x employment with UGS is involuntarily terminated within
two years of his hire date, for reason other than for "Cause", he will be
entitled to a lump sum amount equal to one annual base salary payable within 14
days of his separation. For the purpose of this agreement, "Cause" is defined as
(a) material breach of any agreement entered into between Xxxxx and UGS; (b)
gross negligence or willful misconduct in the performance of his duties and
responsibilities; (c) material failure or refusal to faithfully, diligently, and
competently perform the usual and customary duties associated with his position;
(d) material failure to follow UGS' policies, directives or orders applicable to
UGS employees holding comparable positions; (e) intentional destruction or theft
of UGS property or falsification of UGS documents; (f) conviction of a felony or
any crime involving moral turpitude; or (g) other neglect, misconduct or conduct
that is materially harmful to the operation, business, interest or reputation of
UGS, which neglect, if susceptible to cure, remains uncured after written notice
specifying such neglect, misconduct or conduct.
4. Disclosure and Use of Confidential Information; Documents
a. "Confidential Information" means all information which has not been
made public concerning the Company's business, including but not
limited to: (a) all proprietary information of the Company,
including but not limited to the products and services, technical
data, methods, processes, know-how, developments, inventions, and
formulae of the Company; (b) the development, research, testing,
marketing and financial activities and strategic plans of the
Company; (c) the costs and sources of supply of the Company's
products and services; (d) the identity and needs of the customers,
prospective customers and subcontractors of the Company, customer
lists and customer and sales records, the identity of contacts at
purchasers, any list of purchasers, and any list of sales
transactions and/or prices charged by the Company); (e) the people
and organizations with whom the Company has business relationships
and the nature of those relationships; and (f) any information that
the Company may receive or has received from customers,
subcontractors, suppliers or others, with any understanding, express
or implied, that the information would not be disclosed. Xxxxx
agrees that all Confidential Information is and shall remain the
sole and exclusive property of the Company and that, except as
required for the proper performance of his regular duties for the
Company, as expressly authorized in writing in advance by an officer
of the Company or the designee of an officer, or as required by
applicable law, he will never, directly or indirectly, use or
disclose any Confidential Information. Xxxxx understands and agrees
that this restriction shall continue to apply after the termination
of his employment or this Agreement. He agrees to provide prompt
notice to the Company of any required disclosure of Confidential
Information sought pursuant to subpoena, court order or any other
legal requirement and to provide the Company a reasonable
opportunity to seek protection of the Confidential Information prior
to any such disclosure.
x. Xxxxx agrees that all documents, records and files, in any media of
whatever kind and description, relating to the business of the
Company and any copies
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(including without limitation electronic) (the "Documents" and each
individually, a "Document"), whether or not prepared by him, shall
be the sole and exclusive property of the Company, that he will not
copy or remove any Documents, or copies, from the premises of the
Company, except as required for the proper performance of his
regular duties and that he will safeguard, and return to the Company
immediately upon termination of his employment, and at such other
times as may be specified by the Company, all Documents and all
other property of the Company, and all documents, records and files
of their customers, subcontractors and suppliers ("Third-Party
Documents") and all other property of such customers, subcontractors
and suppliers, then in his possession or control. He also agrees
that, upon request of an officer of the Company, he will disclose
all passwords pertinent to enable the Company to obtain access to
the Documents and Third-Party Documents.
5. Disclosure and Use of Intellectual Property
a. "Intellectual Property" means inventions, discoveries, developments,
methods, processes, compositions, works (including software),
designs, concepts, know-how and ideas (for all such items, whether
or not patentable or copyrightable or constituting trade secrets)
conceived, made, created, developed or reduced to practice by Xxxxx
(in any case, whether alone or with others and whether or not during
normal business hours or on or off Company premises) during his
employment (including prior to this Agreement) that relate in any
way to the business, products or services of the or to any
prospective activity of the Company or which make use of the
Confidential Information or of facilities or equipment of the
Company. Xxxxx shall maintain accurate and complete contemporaneous
records of, and shall immediately and fully disclose and deliver to
the Company, all Intellectual Property. Xxxxx attaches hereto as
Exhibit A a list describing all inventions, original works of
authorship, developments, improvements, and trade secrets made by
him prior to his employment with the Company, which belong to him
and which are not assigned to the Company hereunder (collectively
referred to as "Prior Inventions"); and, if no such list is
attached, Xxxxx represents and warrants that there are no such Prior
Inventions.
x. Xxxxx hereby assigns and agrees in the future to assign to the
Company (or as otherwise directed by the Company) his full right,
title and interest in and to all Intellectual Property. If he
incorporates into any of the Intellectual Property any Prior
Inventions, he hereby grants the Company an irrevocable, worldwide,
fully paid-up, royalty-free, non-exclusive license, with the right
to sublicense through multiple tiers, to make, use, sell, improve,
reproduce, distribute, perform, display, transmit, manipulate in any
manner, create derivative works based upon, and otherwise exploit or
utilize in any manner the Prior Invention(s) included in the
Intellectual Property. Xxxxx agrees to provide, at the Company's
request, all further cooperation which the Company determines is
necessary or desirable to accomplish the complete transfer of the
Intellectual Property and all associated rights to the Company, its
successors, assigns and nominees, including without limitation
executing of any documents pertaining to the Intellectual Property.
To
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the extent that Xxxxx cannot assign and transfer any of his full
right, title, and interest in the Intellectual Property then he
hereby grants the Company an irrevocable, worldwide, fully paid-up,
royalty-free, exclusive license, with the right to sublicense
through multiple tiers, to make, use, sell, improve, reproduce,
distribute, perform, display, transmit, manipulate in any manner,
create derivative works based upon, and otherwise exploit or utilize
in any manner the Intellectual Property.
x. Xxxxx agrees that all copyrightable works that he creates, including
without limitation computer programs and documentation, shall be
considered "work made for hire" and shall, upon creation, be owned
exclusively by the Company.
x. Xxxxx further agrees that he will assign, deliver and communicate to
the Company any know-how, facts and materials arising from or
relating to said Intellectual Property including without limitation:
(i) all simulations, prototypes, and other embodiments of the
Intellectual Property; (ii) all drawings, blueprints, calculations,
research plans and results, lab notes, workbooks and other records
and written materials that relate to the Intellectual Property or
that embody or record any know-how pertaining to the Intellectual
Property; (iii) all files, documents and communications pertaining
to the Intellectual Property; and (iv) evidence for patent
interference purposes or for other legal proceedings whenever
requested.
6. Non-Competition
Xxxxx agrees that, during his employment and during the 12 month period
immediately following termination of his employment, he will not (a) provide
services, in any capacity, whether as an employee, independent contractor or
otherwise, whether with or without compensation for any of the following named
competitors of UGS: Dassault Systems; the part(s) of IBM that work directly with
Dassault Systems; Matrix One; PTC; Agile; SAP; Oracle; Baan; or to perform
duties anywhere in the world for any of the distributors or resellers of the
these named competitors' CAD and/or PLM software products and services; (b)
participate voluntarily with or provide assistance or information to any person
or entity that is involved in (i) negotiations with UGS involving a contract or
services to be rendered by UGS; or (ii) a potential or existing business or
legal dispute with UGS, including, but not limited to, litigation, except as may
be required by law.
7. Non-Solicitation of Employees and Customers
x. Xxxxx acknowledges that his access to Confidential Information and
to the Company's customers and his development of goodwill on behalf
of the Company with its customers during his employment would give
him an unfair competitive advantage were he to leave employment and
begin competing with the Company or for its existing customers and
that he therefore is being granted access to Confidential
Information and the customers of the Company in reliance on his
agreement hereunder. Xxxxx therefore agrees that, during his
employment and for the period of 24 months immediately following
termination (in the
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aggregate, the "Non-Solicitation Period"), he will not solicit or
encourage any customer of the Company to terminate or diminish its
relationship with the Company and he will not seek to persuade any
such customer to conduct with any individual or entity any business
or activity which such customer conducts or could conduct with the
Company.
b. Acknowledging the strong interest of the Company in an undisrupted
workplace, Xxxxx agrees that, during the Non-Solicitation Period, he
will not, and he will not assist any individual or entity to, (a)
hire or solicit for hiring any employee of the Company or seek to
persuade any employee of the Company to discontinue employment or
(b) solicit or encourage any independent contractor providing
services to the Company to terminate or diminish its relationship
with the Company.
8. Remedies and Enforcement
a. In signing this Agreement, Xxxxx acknowledges that he has carefully
read and considered all the terms and conditions of this Agreement,
that he agrees without reservation that each of the restraints
contained herein is necessary for the reasonable and proper
protection of the goodwill, Confidential Information and other
legitimate interests of the Company in respect to subject matter,
length of time and geographic area; and that these restraints will
not prevent him from obtaining other suitable employment during the
period in which he is bound by these restraints. He also
acknowledges and agrees that, were he to breach any of the
provisions of this Agreement, the harm to the Company would be
irreparable. He therefore agrees that in the event of such a breach
or threatened breach the Company shall, in addition to any other
remedies available to them, have the right to obtain preliminary and
permanent injunctive relief against any such breach without having
to post bond. He further agrees that, in the event that any
provision of this Agreement shall be determined by any court of
competent jurisdiction to be unenforceable by reason of its being
extended over too great a time, too large a geographic area or too
great a range of activities, such provision shall be deemed to be
modified to permit its enforcement to the maximum extent permitted
by law.
b. In the event of any alleged breach of this Agreement, I hereby
consent and submit to the jurisdiction of the federal and state
courts in and of the state of Texas and, if different, of the
federal and state courts in and of the state in which I am then
employed. I agree to accept service of process by registered or
certified mail or the equivalent directed to his last known address
on the books of the Company or by whatever other means are permitted
by such court.
9. Duties to Previous Employers
Xxxxx will not disclose to, or use on behalf of the Company, or induce the
Company to use, any proprietary information of any previous employer of his or
other third party without that party's consent.
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10. Entire Agreement
This Agreement sets forth the entire agreement between Xxxxx and the Company and
this Agreement shall be in addition to, and shall not terminate or supersede,
any additional obligations Xxxxx may have pursuant to any prior employment
agreements or other non-disclosure agreements or under applicable law with
respect to confidentiality, non-competition, assignment of rights to
intellectual property or the like. In the event of conflict between this
Agreement and any prior agreement between Xxxxx and the Company, this Agreement
shall govern. No deletion, addition, marking, notation or the like change to the
body of this Agreement shall be of any force or effect and this Agreement shall
be interpreted as if such change had not been made. This Agreement may not be
modified or amended, and no breach shall be deemed to be waived, unless agreed
to in writing by me and an expressly authorized officer of the Company. If any
provision of this Agreement should, for any reason, be held invalid or
unenforceable in any respect, it shall not affect any other provisions, and
shall be construed by limiting it so as to be enforceable to the maximum extent
permissible by law. Provisions of this Agreement shall survive any termination
if so provided in this Agreement or if necessary or desirable to accomplish the
purpose of other surviving provisions.
11. Assignment
Neither the Company nor Xxxxx may make any assignment of this Agreement or any
interest in it, by operation of law or otherwise, without the prior written
consent of the other; provided, however, that the Company may assign its rights
and obligations under this Agreement without his consent in the event that the
Company shall hereafter affect a reorganization, consolidate with, or merge into
any entity or transfer to any entity all or substantially all of the business,
properties or assets of the Company or of any division or line of business of
the Company with which Xxxxx is at any time associated. This Agreement shall
inure to the benefit of and be binding upon Xxxxx and the Company, and each of
their respective successors, executors, administrators, heirs, representatives
and permitted assigns.
12. Employment Relationship
Xxxxx acknowledges and agrees that, except as otherwise provided specifically
herein, this Agreement does not in any way restrict his right or that of the
Company to terminate his employment.
13. Governing Law
This agreement shall be governed by and construed in accordance with the laws of
Texas, without regard to the conflict of laws principles thereof.
14. Signatures
Xxxxx assures the Company that he has read and understood all of the terms of
this Agreement; that he has had a full and reasonable opportunity to consider
its terms and to consult with any person of his choosing before signing; that he
has not relied on any agreements or representations, express or implied, that
are not set forth expressly in this Agreement; and that he
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signs this Agreement knowingly and voluntarily. Intending to be legally bound
hereby, each party signs this Agreement as of the day and year written below.
Signature: /s/ Xxxxx Xxxxx
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Printed Name: Xxxxx Xxxxx
Date: 20 Dec. 2004
Accepted and agreed:
UGS CORP.
By:______________________________
Title:___________________________
Date:____________________________
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EXHIBIT A
LIST OF PRIOR INVENTIONS AND ORIGINAL WORKS OF AUTHORSHIP
IDENTIFYING NUMBER
TITLE DATE OR BRIEF DESCRIPTION
----- ---- --------------------
None
Signature of Xxxxx Xxxxx: /s/ Xxxxx Xxxxx
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Date: 20 Dec. 2004
