Exhibit 10.11
ESPS, Inc.
Employment Agreement
To Xxxx Xxxx:
This Agreement establishes the terms of your employment with ESPS, Inc., a
Delaware corporation (the "Company").
Employment and Duties You and the Company agree to your employment as
President and Chief Executive Officer on the terms
contained herein. You agree to perform whatever duties
the Company's Board of Directors (the "Board") may
assign you from time to time that are reasonably
consistent with your position as President and Chief
Executive Officer. During your employment, you agree to
devote your full business time, attention, and energies
to performing those duties (except as your Direct
Report otherwise agrees from time to time). You agree
to comply with the noncompetition, secrecy, and other
provisions of Exhibit A to this Agreement.
Term of Employment Your employment under this Agreement begins as of your
execution of this Agreement (the "Effective Date").
Unless sooner terminated under this Agreement, your
employment ends at 6:00 p.m. Eastern Time on the second
anniversary of the Effective Date.
The period running from the Effective Date to the
second anniversary of the Effective Date in the
preceding sentence is the "Term."
Termination or expiration of this Agreement ends your
employment but does not end your obligation to comply
with Exhibit A or the Company's obligation, if any, to
make payments under the Payments on Termination and
Severance provisions as specified below.
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Compensation
Salary The Company will pay you an annual salary (the
"Salary") from the Effective Date at the rate of not
less than $225,000 in accordance with its generally
applicable payroll practices. The Board will review
your Salary annually and consider you for increases.
Bonus You will be eligible for an annual bonus equal to up to
$100,000. This bonus will be calculated according to
annual incentive plan formulas. The formulas for the 12
months ended March 31, 2001 are contained in Exhibit C.
It is the Company's good faith intention to provide
formulas for future fiscal years within 90 days of the
commencement of such fiscal year.
Car Allowance You will receive a car allowance equal to $600 per
month.
Employee Benefits While the Company employs you under this Agreement, the
Company will provide you with the same benefits as it
makes generally available from time to time to the
Company's employees, as those benefits are amended or
terminated from time to time. Your participation in the
Company's benefit plans will be subject to the terms of
the applicable plan documents and the Company's
generally applied policies, and the Company in its sole
discretion may from time to time adopt, modify,
interpret, or discontinue such plans or policies.
Place of Employment Your principal place of employment will be within 50
miles of Fort Washington, Pennsylvania.
Expenses The Company will reimburse you for reasonable and
necessary travel and other business-related expenses
you incur for the Company in performing your duties
under this Agreement. You must itemize and substantiate
all requests for reimbursements. You must submit
requests for reimbursement in accordance with the
policies and practices of the Company.
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No Other Employment While the Company employs you, you agree that you will
not, directly or indirectly, provide services to any
person or organization for which you receive
compensation or otherwise engage in activities that
would conflict or interfere significantly with your
faithful performance of your duties as an employee
without the Board's prior written consent. (This
prohibition excludes any work performed at the
Company's direction.) You may manage your personal
investments, as long as the management takes only
minimal amounts of time and is consistent with the
provisions of the No Conflicts of Interest Section and
the No Competition Section in Exhibit A.
You represent to the Company that you are not subject
to any agreement, commitment, or policy of any third
party that would prevent you from entering into or
performing your duties under this Agreement, and you
agree that you will not enter into any agreement or
commitment or agree to any policy that would prevent or
hinder your performance of duties and obligations under
this Agreement, including Exhibit A.
No Conflicts of Interest You confirm that you have fully disclosed to the
Company, to the best of your knowledge, all
circumstances under which you, your spouse, and other
persons who reside in your household have or may have a
conflict of interest with the Company. You further
agree to fully disclose to the Company any such
circumstances that might arise during your employment
upon your becoming aware of such circumstances. You
agree to fully comply with the Company's policy and
practices relating to conflicts of interest.
No Improper You will neither pay nor permit payment of any
remuneration to or
Payments on behalf of any governmental official other than
payments required or permitted by applicable law. You
will comply fully with the Foreign Corrupt Practices
Act of 1977, as amended. You will not, directly or
indirectly,
make or permit any contribution, gift, bribe,
rebate, payoff, influence payment, kickback, or
other payment to
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any person or entity, private or public,
regardless of what form, whether in money,
property, or services
to obtain favorable treatment for business
secured,
to pay for favorable treatment for business
secured,
to obtain special concessions or for special
concessions already obtained, or
in violation of any legal requirement, or
establish or maintain any fund or asset related to
the Company that is not recorded in the Company's
books and records, or
take any action that would violate (or would be
part of a series of actions that would violate)
any U.S. law relating to international trade or
commerce, including those laws relating to trading
with the enemy, export control, and boycotts of
Israel or Israeli products (as is sought by
certain Arab countries).
Termination Subject to the provisions of this section, you and the Company
agree that it may terminate your employment, or you may resign,
except that, if you voluntarily resign, you must provide the
Company with 90 days' prior written notice (unless the Board has
previously waived such notice in writing or authorized a shorter
notice period).
For Cause The Company may terminate your employment for "Cause" if
you:
(i) commit a material breach of your obligations
or agreements under this Agreement, including
Exhibit A;
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(ii) commit an act of gross negligence with
respect to the Company or otherwise act with
willful disregard for the Company's best
interests;
(iii) fail or refuse to perform any duties
delegated to you that are consistent with the
duties of similarly-situated senior executives or
are otherwise required under this Agreement,
provided that these duties do not conflict with
any other provision of this Agreement;
(iv) seize a corporate opportunity for yourself
instead of offering such opportunity to the
Company if within the scope of the Company's or
its subsidiaries' business; or
(v) are convicted of or plead guilty or no
contest to a felony (or to a felony charge reduced
to misdemeanor), or, with respect to your
employment, commit either a material dishonest act
or common law fraud or knowingly violate any
federal or state securities or tax laws.
In any event, termination of your employment for any reason
within 12 months after a change of control will be deemed
termination without Cause and accordingly, you will be
entitled to the severance benefits outlined in the Severance
section below.
Your termination for Cause will be effective immediately
upon the Company's mailing or written transmission of notice
of such termination. Before terminating your employment for
Cause under clauses (i) - (iv) above, the Company will
specify in writing to you the nature of the act, omission,
refusal, or failure that it deems to constitute Cause and,
unless the Board reasonably concludes the situation could
not be corrected, give you 30 days after you receive such
notice to correct the situation (and thus avoid termination
for Cause), unless the Company agrees to extend the time for
correction. You agree that the Board will have the
discretion to determine in good faith whether your
correction is sufficient, provided that this decision does
not
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foreclose you from using the Dispute Resolution provisions
of Exhibit B.
Without Cause Subject to the provisions below under Payments on
Termination and Severance, the Company may terminate your
employment under this Agreement before the end of the Term
without Cause.
Disability If you become "disabled" (as defined below), the Company may
terminate your employment. You are "disabled" if you are
unable, despite whatever reasonable accommodations the law
requires, to render services to the Company for more than 90
consecutive days because of physical or mental disability,
incapacity, or illness. You are also disabled if you are
found to be disabled within the meaning of the Company's
long-term disability insurance coverage as then in effect
(or would be so found if you applied for the coverage).
Good Reason You may resign for Good Reason with 45 days' advance written
notice. "Good Reason" for this purposes means, without your
consent, (i) the Company materially breaches this Agreement
or (ii) the Company relocates your primary office by more
than 50 miles from Fort Washington, Pennsylvania.
You must give notice to the Company of your intention to
resign for Good Reason within 30 days after the occurrence
of the event that you assert entitles you to resign for Good
Reason. In that notice, you must state the condition that
you consider provides you with Good Reason and, if such
reason relates to clause (i) above, must give the Company an
opportunity to cure the condition within 30 days after your
notice. Before or during the 30 day period, either party
may request mediation under Exhibit B to resolve any such
disputes, and, if so requested, the parties agree to
cooperate to arrange a prompt mediation during no more than
a 30 day period. If the Company fails to cure the
condition, your resignation will be effective on the 45th
day after your notice (unless the Board has previously
waived such notice period in writing or agreed to a shorter
notice period or unless mediation is proceeding in good
faith), in which case such resignation xxxx
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become effective 15 days after the end of such mediation, if
not previously cured.
You will not be treated as resigning for Good Reason if the
Company already had given notice of termination for Cause as
of the date of your notice of resignation.
Death If you die during the Term, the Term will end as of the date
of your death.
Payments on If you resign or the Company terminates your employment with
Termination or without Cause or because of disability or death, the
Company will pay you any unpaid portion of your Salary pro-
rated through the date of actual termination (and any annual
bonuses already determined by such date but not yet paid
unless your employment is terminated with Cause), reimburse
any substantiated but unreimbursed business expenses, pay
any accrued and unused vacation time (to the extent
consistent with the Company's policies), and provide such
other benefits as applicable laws or the terms of the
benefits require. Except to the extent the law requires
otherwise or as provided in the Severance paragraph or in
your option agreements, neither you nor your beneficiary or
estate will have any rights or claims under this Agreement
or otherwise to receive severance or any other compensation,
or to participate in any other plan, arrangement, or
benefit, after such termination or resignation.
Severance In addition to the foregoing payments, if the Company
terminates your employment without Cause or you resign for
Good Reason, the Company will
pay you severance equal to your Salary, as then in
effect, for six months on the same schedule as
though you had remained employed during such
period, even though you are no longer employed;
pay the after-tax premium cost for you to receive
any group health coverage the Company must offer
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you under Section 4980B of the Internal Revenue
Code of 1986 ("COBRA Coverage") for the period of
such coverage (unless the coverage is then
provided under a self-insured plan);
pay you, at the time the Company would otherwise
pay your annual bonus, your pro rata share of the
bonus for the year of your termination, where the
pro rata factor is based on days elapsed in your
year of termination till date of termination over
365, less any portion of the bonus for the year of
your termination already paid; and
It is the Company's good faith intention to provide
you, within 90 days of this agreement, a description of
the number of unvested options that will be subject to
accelerated vesting upon either termination without
cause, resignation for good reason, or as a result of a
change of control.
You are not required to mitigate amounts payable under
the Severance paragraph by seeking other employment or
otherwise, nor must you return to the Company amounts
earned under subsequent employment.
Change of Control A Change of Control for this purpose means the
occurrence of any one or more of the following events:
a person, entity, or group (other than the Company, any
Company subsidiary, any Company benefit plan, or any
underwriter temporarily holding securities for an
offering of such securities) acquires ownership of more
than 50% of the undiluted total voting power of the
Company's then-outstanding securities eligible to vote
to elect members of the Board ("COMPANY VOTING
SECURITIES"); consummation of a merger or consolidation
of the Company with or into any other entity -- unless
the holders of the Company Voting Securities
outstanding immediately before such consummation,
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together with any trustee or other fiduciary holding
securities under a Company benefit plan, hold
securities that represent immediately after such merger
or consolidation at least 50% of the combined voting
power of the then outstanding voting securities of
either the Company or the other surviving entity or its
parent; or the stockholders of the Company approve (i)
a plan of complete liquidation or dissolution of the
Company or (ii) an agreement for the Company's sale or
disposition of all or substantially all the Company's
assets, AND such liquidation, dissolution, sale, or
disposition is consummated.
Expiration Expiration of this Agreement, whether because of notice of
non-renewal or otherwise, does not constitute termination
without Cause nor provide you with Good Reason and does not
entitle you to Severance, unless the Company's general
severance practices entitle you to severance in that
situation. If you remain employed at the end of the Term
and your employment then ends as a result of expiration of
the Agreement, the Company will pay you severance equal to
your Salary, as then in effect, for 12 months on the same
schedule as though you had remained employed during such
period, even though you are no longer employed, which
payments you agree compensate you for the restrictions under
Exhibit A upon contract expiration.
Severability If the final determination of an arbitrator or a court of
competent jurisdiction declares, after the expiration of the
time within which judicial review (if permitted) of such
determination may be perfected, that any term or provision
of this Agreement, including any provision of Exhibit A, is
invalid or unenforceable, the remaining terms and provisions
will be unimpaired, and the invalid or unenforceable term or
provision will be deemed replaced by a term or provision
that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable
term or provision.
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Amendment; Waiver Neither you nor the Company may modify, amend, or waive the
terms of this Agreement other than by a written instrument
signed by you and an executive officer of the Company duly
authorized by the Board. Either party's waiver of the other
party's compliance with any provision of this Agreement is
not a waiver of any other provision of this Agreement or of
any subsequent breach by such party of a provision of this
Agreement.
Withholding The Company will reduce its compensatory payments to you for
withholding and FICA taxes and any other withholdings and
contributions required by law.
Governing Law The laws of the State of Pennsylvania (other than its
conflict of laws provisions) govern this Agreement.
Notices Notices must be given in writing by personal delivery, by
certified mail, return receipt requested, by telecopy, or by
overnight delivery. You should send or deliver your notices
to the Company's corporate headquarters. The Company will
send or deliver any notice given to you at your address as
reflected on the Company's personnel records. You and the
Company may change the address for notice by like notice to
the others. You and the Company agree that notice is
received on the date it is personally delivered, the date it
is received by certified mail, the date of guaranteed
delivery by the overnight service, or the date the fax
machine confirms effective transmission.
Superseding Effect This Agreement supersedes any prior oral or written
employment, severance, option, or fringe benefit agreements
between you and the Company, other than with respect to your
eligibility for generally applicable employee benefit plans.
This Agreement supersedes all prior or contemporaneous
negotiations, commitments, agreements, and writings with
respect to the subject matter of this Agreement. All such
other negotiations, commitments, agreements, and writings
will have no further force or effect; and the parties to any
such other negotiation,
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commitment, agreement, or writing will have no further
rights or obligations thereunder.
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If you accept the terms of this Agreement, please sign in the space indicated
below. We encourage you to consult with any advisors you choose.
ESPS, Inc.
By: /s/ Xxxxxxx Xxxxxx
I accept and agree to the terms of employment set
forth in this Agreement:
/s/ R. Xxxxxxx Xxxx
Dated: November 27, 2000
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Exhibit A
---------
No Competition You agree to the provisions of this Exhibit A in
consideration of your employment by the Company and salary
and benefits under this Agreement and the training you will
receive in connection with such employment, and you agree
that Exhibit A should be considered ancillary to the option
agreements by which you will receive options from the
Company. While the Company (or its successor or transferee)
employs you and to the end of the Restricted Period (as
defined below), you agree as follows:
You will not, directly or indirectly, be employed by, lend
money to, or engage in any Competing Business within the
Market Area (each as defined below). That prohibition
includes, but is not limited to, acting, either singly or
jointly or as agent for, or as an employee of or consultant
to, any one or more persons, firms, entities, or
corporations directly or indirectly (as a director,
independent contractor, representative, consultant, member,
or otherwise) that constitutes such a Competing Business.
You also will not invest or hold equity or options in any
Competing Business, provided that you may own up to 3% of
the outstanding capital stock of any corporation that is
actively publicly traded without violating this No
Competition covenant, so long as you have no involvement
beyond passive investing in such business and you comply
with the second sentence of this paragraph.
If, during the Restricted Period, you are offered and want
to accept employment with a business that engages in
activities similar to the Company's, you will inform the
Chairman of the Board in writing of the identity of the
business, your proposed duties with that business, and the
proposed starting date of that employment. You will also
inform that business of the terms of this Exhibit A. The
Company will analyze the proposed employment and make a good
faith determination as to whether it would threaten the
Company's legitimate competitive interests. If
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the Company determines that the proposed employment would
not pose an unacceptable threat to its interests, the
Company will notify you that it does not object to the
employment.
You acknowledge that, during the portion of the Restricted
Period that follows your employment, you may engage in any
business activity or gainful employment of any type and in
any place except as described above. You acknowledge that
you will be reasonably able to earn a livelihood without
violating the terms of this Agreement.
You understand and agree that the rights and obligations set
forth in this No Competition Section will continue and will
survive through the Restricted Period.
Definitions
Competing Competing Business means any service or product of any
Business person or organization other than the Company and its
successors, assigns, or subsidiaries (collectively, the
"Company Group") that competes with any service or product
of the Company Group provided by any member of the Company
Group during your employment. Competing Business includes
any enterprise engaged in the creation or sale of knowledge
publishing software, and other related services to assist
clients in integrating and maintaining their knowledge
publishing solutions.
Market Area The Market Area consists of the United States and Canada.
You agree that the Company provides services both at its
facilities and at the locations of its customers or clients
and that, by the nature of its business, it operates
globally.
Restricted For purposes of this Agreement, the Restricted Period ends
Period at the first anniversary of the date your employment with
the Company Group ends for any reason.
No Interference; During the Restricted Period, you agree that you will not,
directly
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No Solicitation or indirectly, whether for yourself or for any other
individual or entity (other than the Company or its
affiliates or subsidiaries), intentionally
solicit any person or entity who is, or was, within the
24 months preceding your date of termination or
resignation, a customer, prospect (with respect to
which any member of the Company Group has incurred
substantial costs or with which you have been
involved), or client of the Company Group within the
Market Area, with the 24 month period reduced to 12
months for prospects with which you have not been
involved;
hire away or endeavor to entice away from the Company
Group any employee or any other person or entity whom
the Company Group engages to perform services or supply
products and including, but not limited to, any
independent contractors, consultants, engineers, or
sales representatives or any contractor, subcontractor,
supplier, or vendor; or
hire any person whom the Company Group employs or
employed within the prior 12 months.
Secrecy
Preserving Your employment with the Company under and, if applicable,
Company before this Agreement (with a predecessor to a member of the
Confidences Company Group), has given and will give you access to
Confidential Information (as defined below). You
acknowledge and agree that using, disclosing, or publishing
any Confidential Information in an unauthorized or improper
manner could cause the Company or Company Group to incur
substantial loss and damages that could not be readily
calculated and for which no remedy at law would be adequate.
Accordingly, you agree with the Company that you will not at
any time, except in performing your employment duties to the
Company or the Company Group under this Agreement (or with
the Board's prior written consent),
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directly or indirectly, use, disclose, or publish, or permit
others not so authorized to use, disclose, or publish any
Confidential Information that you may learn or become aware
of, or may have learned or become aware of, because of your
prior or continuing employment, ownership, or association
with the Company or the Company Group or any of their
predecessors, or use any such information in a manner
detrimental to the interests of the Company or the Company
Group.
Preserving You agree not to use in working for the Company Group and
Others' not to disclose to the Company Group any trade secrets or
Confidences other information you do not have the right to use or
disclose and that the Company Group is not free to use
without liability of any kind. You agree to promptly inform
the Company in writing of any patents, copyrights,
trademarks, or other proprietary rights known to you that
the Company or the Company Group might violate because of
information you provide.
Confidential "Confidential Information" includes, without limitation,
Information information that the Company or the Company Group has not
previously disclosed to the public or to the trade with
respect to the Company's or the Company Group's present or
future business, including its operations, services,
products, research, inventions, discoveries, drawings,
designs, plans, processes, models, technical information,
facilities, methods, trade secrets, copyrights, software,
source code, systems, patents, procedures, manuals,
specifications, any other intellectual property,
confidential reports, price lists, pricing formulas,
customer lists, financial information (including the
revenues, costs, or profits associated with any of the
Company's or the Company Group's products or services),
business plans, lease structure, projections, prospects,
opportunities or strategies, acquisitions or mergers,
advertising or promotions, personnel matters, legal matters,
any other confidential and proprietary information, and any
other information not generally known outside the Company or
the Company Group that may be of value to the Company or the
Company Group but, notwithstanding anything to the contrary,
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excludes any information already properly in the public
domain. "Confidential Information" also includes
confidential and proprietary information and trade secrets
that third parties entrust to the Company or the Company
Group in confidence.
You understand and agree that the rights and obligations set
forth in this Secrecy Section will continue indefinitely and
will survive termination of this Agreement and your
employment with the Company or the Company Group.
Exclusive Property You confirm that all Confidential Information is and must
remain the exclusive property of the Company or the relevant
member of the Company Group. Any office equipment
(including computers) you receive from the Company Group in
the course of your employment and all business records,
business papers, and business documents you keep or make,
whether on digital media or otherwise, in the course of your
employment by the Company relating to the Company or any
member of the Company Group must be and remain the property
of the Company or the relevant member of the Company Group.
Upon the termination of this Agreement with the Company or
upon the Company's request at any time, you must promptly
deliver to the Company or to the relevant member of the
Company Group any such office equipment (including
computers) and any Confidential Information or other
materials (written or otherwise) not available to the public
or made available to the public in a manner you know or
reasonably should recognize the Company did not authorize,
and any copies, excerpts, summaries, compilations, records,
or documents you made or that came into your possession
during your employment. You agree that you will not, without
the Company's consent, retain copies, excerpts, summaries,
or compilations of the foregoing information and materials.
You understand and agree that the rights and obligations set
forth in this Exclusive Property Section will continue
indefinitely and will survive termination of this Agreement
and your employment with the Company Group.
Copyrights, You agree that all records, in whatever media (including
written
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Discoveries, works), documents, papers, notebooks, drawings, designs,
Inventions, and technical information, source code, object code,
Patents processes, methods or other copyrightable or otherwise
protected works you conceive, create, make, invent, or
discover that relate to or result from any work you perform
or performed for the Company or the Company Group or that
arise from the use or assistance of the Company Group's
facilities, materials, personnel, or Confidential
Information in the course of your employment (whether or not
during usual working hours), whether conceived, created,
discovered, made, or invented individually or jointly with
others, will be and remain the absolute property of the
Company (or another appropriate member of the Company Group,
as specified by the Company), as will all the worldwide
patent, copyright, trade secret, or other intellectual
property rights in all such works. (All references in this
section to the Company include the members of the Company
Group, unless the Company determines otherwise.) You
irrevocably and unconditionally waive all rights, wherever
in the world enforceable, that vest in you (whether before,
on, or after the date of this Agreement) in connection with
your authorship of any such copyrightable works in the
course of your employment with the Company Group or any
predecessor. Without limitation, you waive the right to be
identified as the author of any such works and the right not
to have any such works subjected to derogatory treatment.
You recognize any such works are "works for hire" of which
the Company is the author.
You will promptly disclose, grant, and assign ownership to
the Company for its sole use and benefit any and all ideas,
processes, inventions, discoveries, improvements, technical
information, and copyrightable works (whether patentable or
not) that you develop, acquire, conceive or reduce to
practice (whether or not during usual working hours) while
the Company or the Company Group employs you. You will
promptly disclose and hereby grant and assign ownership to
the Company of all patent applications, letters patent,
utility and design patents, copyrights, and reissues thereof
or any foreign equivalents thereof, that may at any time
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be filed or granted for or upon any such invention,
improvement, or information. In connection therewith:
You will, without charge but at the Company's expense,
promptly execute and deliver such applications,
assignments, descriptions, and other instruments as the
Company may consider reasonably necessary or proper to
vest title to any such inventions, discoveries,
improvements, technical information, patent
applications, patents, copyrightable works, or reissues
thereof in the Company and to enable it to obtain and
maintain the entire worldwide right and title thereto;
and
You will provide to the Company at its expense all such
assistance as the Company may reasonably require in the
prosecution of applications for such patents,
copyrights, or reissues thereof, in the prosecution or
defense of interferences that may be declared involving
any such applications, patents, or copyrights and in
any litigation in which the Company may be involved
relating to any such patents, inventions, discoveries,
improvements, technical information, or copyrightable
works or reissues thereof. The Company will reimburse
you for reasonable out-of-pocket expenses you incur and
pay you reasonable compensation for your time if the
Company Group no longer employs you.
To the extent, if any, that you own rights to works,
inventions, discoveries, proprietary information, and
copyrighted or copyrightable works, or other forms of
intellectual property that are incorporated in the work
product you create for the Company Group, you agree that the
Company will have an unrestricted, non-exclusive, royalty-
free, perpetual, transferable license to make, use, sell,
offer for sale, and sublicense such works and property in
whatever form, and you hereby grant such license to the
Company (and the Company Group).
This Copyrights, Discoveries, Inventions and Patents section
does not apply to an invention or discovery for which no
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equipment, supplies, facility or trade secret information of
the Company Group (including its predecessors) was used and
that was developed entirely on your own time, unless (a) the
invention relates (i) directly to the business of the
Company Group, or (ii) the Company Group's actual or then
reasonably anticipated research or development, or (b) the
invention results from any work you performed for the
Company Group or any predecessor.
Maximum Limits If any of the provisions of Exhibit A are ever deemed to
exceed the time, geographic area, or activity limitations
the law permits, you and the Company agree to reduce the
limitations to the maximum permissible limitation, and you
and the Company authorize a court or arbitrator having
jurisdiction to reform the provisions to the maximum time,
geographic area, and activity limitations the law permits;
provided, however, that such reductions apply only with
respect to the operation of such provision in the particular
jurisdiction with respect to which such adjudication is
made.
Injunctive Relief Without limiting the remedies available to the Company, you
acknowledge
that a breach of any of the covenants in this Exhibit A
may result in material irreparable injury to the
Company and Company Group for which there is no
adequate remedy at law, and
that it will not be possible to measure damages for
such injuries precisely.
You agree that, if there is a breach or threatened breach,
the Company or any member of the Company Group may be
entitled to obtain a temporary restraining order and/or a
preliminary or permanent injunction restraining you from
engaging in activities prohibited by any provisions of this
Exhibit A or such other relief as may be required to
specifically enforce any of the covenants in this Exhibit A.
The Company or any member of the Company Group will, in
addition to the remedies provided in this
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Agreement, be entitled to avail itself of all such other
remedies as may now or hereafter exist at law or in equity
for compensation and for the specific enforcement of the
covenants contained in this Agreement. Resort to any remedy
provided for in this Section or provided for by law will not
prevent the concurrent or subsequent employment of any other
appropriate remedy or remedies, or preclude the Company's or
the Company Group's recovery of monetary damages and
compensation. You also agree that the Restricted Period or
such longer period during which the covenants hereunder by
their terms survive will extend for any and all periods for
which a court with personal jurisdiction over you finds that
you violated the covenants contained in this Exhibit A.
Exhibit B
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Dispute Resolution
Mediation If either party has a dispute or claim relating to this Agreement
or their relationship and except as set forth in Alternatives,
the parties must first seek to mediate the same before an
impartial mediator the parties mutually designate, and the
parties must equally share the expenses of such proceeding (other
than their respective attorneys' fees). Subject to the
mediator's schedule, the mediation must occur within 45 days of
either party's written demand. However, in an appropriate
circumstance, a party may seek emergency equitable relief from a
court of competent jurisdiction notwithstanding this obligation
to mediate.
Binding If the mediation reaches no solution or the parties agree to
Arbitration forego mediation, the parties will promptly submit their disputes
to binding arbitration before one or more arbitrators
(collectively or singly, the "Arbitrator") the parties agree to
select (or whom, absent agreement, a court of competent
jurisdiction selects). The arbitration must follow applicable law
related to arbitration proceedings and, where appropriate, the
Commercial Arbitration Rules of the American Arbitration
Association.
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Arbitration All statutes of limitations and substantive laws applicable to a
Principles court proceeding will apply to this proceeding. The Arbitrator
will have the power to grant relief in equity as well as at law,
to issue subpoenas duces tecum, to question witnesses, to
consider affidavits (provided there is a fair opportunity to
rebut the affidavits), to require briefs and written summaries
of the material evidence, and to relax the rules of evidence and
procedure, provided that the Arbitrator must not admit evidence
it does not consider reliable. The Arbitrator will not have the
authority to add to, detract from, or modify any provision of
this Agreement. The parties agree (and the Arbitrator must
agree) that all proceedings and decisions of the Arbitrator will
be maintained in confidence, to the extent legally permissible,
and not be made public by any party or the Arbitrator without
the prior written consent of all parties to the arbitration,
except as the law may otherwise require.
Discovery; The parties have selected arbitration to expedite the resolution
Evidence; of disputes of disputes and to reduce the costs and burdens
Presumptions associated with litigation. The parties agree that the
Arbitrator should take these concerns into account when
determining whether to authorize discovery and, if so, the scope
of permissible discovery and other hearing and pre-hearing
procedures. The Arbitrator may permit reasonable discovery
rights in preparation for the arbitration, provided that it
should accelerate the scheduling of and responses to such
discovery so as not to unreasonably delay the arbitration.
Exhibits must be marked and left with the Arbitrator until it
has rendered a decision. Either party may elect, at its expense,
to record the proceedings by audiotape or stenographic recorder
(but not by video). The Arbitrator may conclude that the
applicable law of any foreign jurisdiction would be identical to
that of Texas on the pertinent issue(s), absent a party's
providing the Arbitrator with relevant authorities (and copying
the opposing party) at least five business days before the
arbitration hearing.
Nature of Award The Arbitrator must render its award, to the extent feasible,
within 30 days after the close of the hearing. The award must
set forth the material findings of fact and legal conclusions
supporting the award. The parties agree that it will be final,
binding, and enforceable by any court of competent jurisdiction.
Where necessary or appropriate to
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effectuate relief, the Arbitrator may issue equitable orders as
part of or ancillary to the award. The Arbitrator must equitably
allocate the costs and fees of the proceeding and may consider in
doing so the relative fault of the parties. The Arbitrator may
award reasonable attorneys' fees to the prevailing party to the
extent a court could have made such an award.
Appeal The parties may appeal the award based on the grounds allowed by
statute, as well as upon the ground that the award misapplies the
law to the facts, provided that such appeal is filed within the
applicable time limits law allows. If the award is appealed, the
court may consider the ruling, evidence submitted during the
arbitration, briefs, and arguments but must not try the case de
novo. The parties will bear the costs and fees associated with
the appeal in accordance with the arbitration award or, in the
event of a successful appeal, in accordance with the court's
final judgment.
Alternatives This Dispute Resolution provision does not preclude a party from
seeking equitable relief from a court (i) to prevent imminent or
irreparable injury or (ii) pending arbitration, to preserve the
last peaceable status quo, nor does it preclude the parties from
agreeing to a less expensive and faster means of dispute
resolution. It does not prevent the Company from immediately
seeking in court an injunction or other remedy with respect to
Exhibit A.
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