EMPLOYMENT AGREEMENT
EXHIBIT 10.1b
THIS
EMPLOYMENT AGREEMENT (the “Agreement”), entered into this 2nd day of July, 2009,
by and between BLINDSPOT ALERT, INC., a Nevada corporation (the “Employer”), and
XXXXXXX X. XXXXXX
(“Employee”).
WITNESSETH
WHEREAS, the Employer desires
to employ, and Employee desires to work for Employer;
WHEREAS, the Employer desires
to provide fair and reasonable benefits to Employee on the terms and subject to
the conditions set forth in this Agreement; and
WHEREAS, the Employer desires
reasonable protection of their confidential business and customer information
which they will develop over the years at substantial expense and assurance that
Employee will not compete with the Employer for a reasonable period of time
after termination of his employment with the Employer, except as otherwise
provided herein.
NOW, THEREFORE, in
consideration of the foregoing premises, the mutual covenants
and undertakings herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties, each intending to be legally bound, covenant and agree as
follows:
1. Employment. Upon
the terms and subject to the conditions set forth in this Agreement, the
Employer employs Employee as the Employer’s President and Employee accepts such
employment.
2. Positions. Employee
agrees to serve as the Employer’s President and to perform such
duties as may reasonably be assigned to him by the Employer’s Board of Directors
and Employee’s Chief Executive Officer not inconsistent with the nature of
Employee’s position and such duties which are of the character as those
generally associated with such officer’s title.
3. Term. The
term of this Agreement shall begin on the date Employer purchases the software
assets of WQN, Inc. as more fully described in the Asset Purchase Agreement
between the Employer and WQN, Inc. (the “Effective Date”) and shall end on
December 31, 2010; provided, however, that such term shall be extended
automatically for an additional calendar year, unless either party hereto gives
sixty (60) days written notice to the other party not to extend prior to the end
of the calendar year (such term, including any extension thereof shall herein be
referred to as the “Term”).
4. Salary. Upon
Employer achieving $1,000,000 in monthly sales from the multilevel marketing
sales distribution channels, Employee shall receive an annual salary of Two
Hundred Forty Thousand Dollars ($240,000.00) (“Base Compensation”) payable at
regular intervals in accordance with the Employer’s normal payroll practices in
effect from time to time. Employee shall be entitled to receive a
bonus as determined by Employer’s Board of Directors at their sole
discretion. Additionally, Employee will be eligible to participate in
Employer’s stock option plan to the same extent as other executives, officers
and employees of Employer, and to receive stock options thereunder in such
amounts and at such times as the Board of Directors may determine in its
discretion.
1
5. Stock
Issuance. Employee shall receive 1,500,000 shares, subject to
vesting, of Employer’s common stock upon The Effective Date of this
Agreement.
These
common shares will vest with Employee as follows: (i) 100,000 shares shall vest
upon the Effective Date of this Agreement, (ii) 400,000 shares shall vest upon
Employer reaching $30,000,000 of sales by December 31, 2010; and (iii) 1,000,000
shares shall vest upon Employer reaching $60,000,000 of sales by December 31,
2011.
These
common shares shall be restricted and shall bear a standard 1933 Act
legend.
6. Benefit
Programs. During the term of this Agreement, Employee shall be
entitled to participate in or receive benefits (collectively, the “Benefits”)
comparable to the other employees of the Employer, if such benefits are offered
by the Employer. The foregoing does not obligate the Employer to
provide benefits of any type.
7. General
Policies. All matters relating to the employment of Employee
by the Employer not specifically addressed in this Agreement shall be subject to
the general policies regarding employees of the Employer in effect from time to
time.
8. Termination. Subject
to the respective continuing obligations of the parties, Employee’s employment
by the Employer may be terminated prior to the expiration of the Term of this
Agreement as follows:
(a) The
Employer, by action of its Board of Directors and upon written notice to
Employee, may terminate Employee’s employment with the Employer for
cause. For purposes of this subsection 8(a),
“cause” shall be defined as (i) Employee’s personal dishonesty of a
material nature affecting Employee’s ability to perform his duties under this
Agreement, (ii) Employee’s incompetence in the performance of his duties
and obligations under this Agreement, (iii) Employee’s willful misconduct
or gross negligence, (iv) Employee’s breach of fiduciary duty involving personal
profit, (v) Employee’s intentional failure to perform stated duties,
(vi) Employee’s conviction of any criminal offense which involves
dishonesty or breach of trust or conviction of any felony, (vii) any
requirement of a government agency or authority having jurisdiction over the
Employer, (viii) Employer not achieving $30,000,000 of sales by December 31,
2010; or (ix) any material violation by Employee of any material provision
or covenant of this Agreement not cured by Employee within thirty (30) days of
Employee’s receipt of notice from the Employer of such material
violation.
(b) Employee,
by written notice to the Employer, may terminate his employment with the
Employer immediately for good reason. For purposes of this subsection 8(b),
“good reason” shall be defined as any material violation by the Employer of any
material provision or covenant of this Agreement.
2
(c) Employee’s
employment with Employer shall terminate in the event of Employee’s death or
disability. For purposes hereof, “disability” shall mean the physical or mental
inability of Employee to perform his obligations hereunder, provided that notice
of any termination by the Employer because of Employee’s “disability” shall have
been given to Employee prior to the full resumption by him of the performance of
such duties.
(d) Nothing
contained in this Agreement shall impair, affect or change any requirements
otherwise imposed upon the Employer or Employee by applicable statute, law,
rule, regulation or other legal requirement, including, without limitation,
Employee’s COBRA rights upon termination of employment.
9. Termination
Payments. In the event of termination of Employee’s employment
pursuant to Section
8 hereof, compensation shall continue to be paid to Employee as
follows:
(a) In
the event of termination pursuant to subsection 8(a),
compensation provided for herein (including Base Compensation) shall continue to
be paid, and Employee shall continue to participate in the benefit, retirement,
and compensation plans and other perquisites as provided in Sections 6 and 7
hereof, for the lesser of (i) for a period of 3 months after the date set forth
in the notice of termination, or (ii) for a period up to the remaining
Term. Any benefits payable under insurance, health, retirement and
bonus plans as a result of Employee’s participation in such plans through such
date shall be paid when due under those plans.
(b) In
the event of termination pursuant to subsection 8(b),
compensation provided for herein (including Base Compensation) at the rate in
effect at the time of termination shall continue to be paid to Employee and
Employee shall continue to participate in the benefit, retirement and
compensation plans and other perquisites as provided in Sections 6 and 7
hereof, through the date of termination. Throughout the period during
which Employee’s compensation shall continue hereunder, the Employer shall
continue to contribute the employer portion toward the cost of such benefits and
other perquisites in a manner consistent with the applicable terms of the
governing plan documents and if applicable, insurance contracts, and otherwise
in accordance with the procedures and policies in place prior to such
termination through the date such payments, benefit coverages and perquisites
are to be continued hereunder. Payment of compensation during this
period, including Base Compensation, shall be made pursuant to the applicable
payroll practices then utilized by the Employer, and shall terminate on the
first payroll payment date occurring after the date of termination of Employee’s
employment.
(c) In
the event of termination pursuant to subsection 8(c),
compensation provided for herein (including Base Compensation) shall continue to
be paid and Employee shall continue to participate in the benefit, retirement,
and compensation plans and other perquisites as provided in Sections 6 and 7
hereof in a manner consistent with the applicable terms of the governing plan
documents, (i) in the event of Employee’s death, through the date of death, or
(ii) in the event of Employee’s disability, through the date of proper notice of
disability as required by subsection
8(c). Any benefits payable under insurance, health, retirement
and bonus plans as a result of the Employer’s participation in such plans
through such date shall be paid when due under those plans.
3
10. Notice of
Termination. Any termination of Employee’s employment with
Employer as contemplated by Section 8 hereof,
except in the circumstances of Employee’s death, shall be communicated by
written “Notice of Termination” by the terminating party to the other party
hereto. Any “Notice of Termination” pursuant to subsections 8(a), 8(b) or
8(c) shall indicate the specific provisions of this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for such termination.
11. Regulatory
Oversight. All obligations under this Agreement may be
terminated except to the extent determined that the continuation of the
Agreement is necessary for the continued operation of the Employer by order of
any state or federal regulatory agency with supervision of the Employer, unless
stayed by appropriate proceedings, and the Employer shall be under no obligation
to perform any of its obligations hereunder if it is informed in writing by any
state or federal regulatory agency with supervision of the Employer that
performance of its obligations would constitute an unsafe or unsound business
practice.
12. Death. Should
Employee die after termination of his employment with the Employer while any
amounts are payable to him hereunder, this Agreement shall inure to the benefit
of and be enforceable by Employee’s executors, administrators, heirs,
distributees, devisees and legatees and all amounts payable hereunder shall be
paid in accordance with the terms of this Agreement to Employee’s devisee,
legatee or other designee or, if there is no such designee, to his
estate.
13. Notices. For
purposes of this Agreement, notices and all other communications provided for
herein shall be in writing and shall be deemed to have been given when delivered
or mailed by United States registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If
to Employee: Xxxxxxx
X. Xxxxxx, Ph.D.
0000 Xxxx
Xxxxxxx Xxxx, Xxxxx 000-00
Xxxxxx
Xxxx, Xxxxx 000000
Facsimile:
(000) 000-0000
Xxxxxxx@xxxxxxxxxxxxxxxxxxxx.xxx
If
to the Employer: Rowland W. Day II
Chief
Executive Officer
0
Xxxxxxxxx Xxxxx
Xxxxxxx
Xxxxx, XX 00000
Facsimile:
(000) 000-0000
xxxx@xxxxxxx.xxx
or to
such other address as either party hereto may have furnished to the other party
in writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
4
14. Noncompetition. Employee
covenants that, commencing on Employee’s termination of employment and ending on
the date that is two years after Employee ceases to be an employee or consultant
to Employer or any of its subsidiaries (the “Noncompetion
Period”), Employee shall not, nor shall Employees affiliates, in any
state in which the Employer or any of its subsidiaries currently conducts or
conducted its business (the “Territory”), engage,
either directly or indirectly, as a principal or for such Employee’s own account
or solely or jointly with others, or as an officer, director or a stockholder in
any corporation or joint sock association, in any business that directly
competes with the businesses of the Employer or any of its subsidiaries (“Compete”). The
foregoing shall not be breached as result of (i) such Employee ownership or
other right to acquire by Employee (or any of its affiliates) of not more than
an aggregate of one percent (1%) of any class of stock or other securities which
are listed on a nationally or internationally recognized stock exchange or
NASDAQ of a person engaged, directly or indirectly, in a business that competes
with the businesses of the Employer or any of its subsidiaries.
Upon
termination of employment, Employee may be employed by Advent Communications,
Inc.
15. Nonsolicitation. Employee
covenants that, commencing on Employee’s Termination of Employment and ending on
the date that is two years after Employee ceases to be an employee or consultant
to the Employer, or any of its Subsidiaries, such Employee shall not, and shall
cause its affiliates not to, directly or indirectly, (i) induce or attempt to
induce any employee of the Employer or any of its subsidiaries, or in any way
interfere with the relationship between the Employer or any of its subsidiaries
and any employee thereof; (ii) hire any person who was an employee, independent
contractor or consultant of the Employer or any of its subsidiaries within 180
days after such person ceased to be an employee, independent contractor or
consultant of the Employer or any of its subsidiaries; (iii) induce or attempt
to induce any referral source or other business relation of the Employer or any
of its subsidiaries to cease doing business with the Employer, or (iv) directly
or indirectly acquire or attempt to acquire an interest in any business relating
to the business of the Employer or any of its subsidiaries and with which the
Employer or any of its subsidiaries has entered into discussions or has
requested and received information relating to the acquisition of such business
by the Employer or any of its subsidiaries in the two-year period immediately
preceding the date of termination of such Employee’s employment with
Employer.
16. Non-Disparagement. Employee
covenants that such Employee shall not, and shall cause its affiliates not to
disparage or encourage or induce others to disparage the Employer or any of its
subsidiaries or affiliates or any of its or their past and present employees,
directors, products or services. For the purpose of this Agreement,
the term “disparage” includes, without limitation, comments or statements to the
press, media or to any third party with the intent to harm the character or
reputation of Employer, its affiliates, or any employee, consultant, agent,
director, distributor, independent contractor or multilevel
participant.
17. Cooperation. Upon
the receipt of reasonable notice by Employee (including notice on behalf of the
Employer by its outside counsel), Employee agrees that he will respond and
provide information with regard to matters in which he has knowledge as a result
of his ownership of and, or, and employment with Employer, and will provide
reasonable assistance to Employer and its subsidiaries and affiliates and their
respective representatives in defense of any claims that may be made against the
Employer or any of its subsidiaries or affiliates.
5
18. Governing
Law. The validity, interpretation, and performance of this
Agreement shall be governed by the laws of the State of California, without
reference to the choice of law principles or rules thereof, except to the extent
that federal law shall be deemed to apply.
19. Employee Confidentiality and
Invention Assignment Agreement. Employee shall execute the
attached Employee Confidentiality and Invention Assignment Agreement which is
incorporated into this Agreement as Exhibit A.
20. Modification. No
provision of this agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing signed by the Employer
and Employee. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a wavier of dissimilar provisions or conditions at the same or any prior
subsequent time. No agreements or representation, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement.
21. Validity. The
invalidity or unenforceability of any provisions of this Agreement shall not
affect the validity or enforceability of any other provisions of this Agreement
which shall remain in full force and effect.
22. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
agreement.
23. Assignment. This
Agreement is personal in nature and neither party hereto shall, without consent
of the other, assign or transfer this Agreement or any rights or obligations
hereunder except as provided in Section 12
above. Without limiting the foregoing, Employee’s right to receive
compensation hereunder shall not be assignable or transferable, whether by
pledge, creation of a security interest or otherwise, other than a transfer by
his will or by the laws of descent or distribution as set forth in Section 12 hereof,
and in the event of any attempted assignment or transfer contrary to this
paragraph, Employer shall have no liability to pay any amounts so attempted to
be assigned or transferred.
24. Enforcement. If
any provision of this Agreement is invalid in part or in whole, it will be
deemed to have been amended, whether as to time, area covered or otherwise, as
and to the extent required for its validity under applicable law and, as so
amended, will be enforceable. The parties will execute all documents
necessary to evidence such amendment.
25. Arbitration. Any
controversy, dispute or claim of any nature whatsoever arising out of, in
connection with or in relation to this Agreement, or otherwise involving the
parties hereto, including the issue of arbitrability of any such disputes, will
be resolved by binding arbitration before a retired judge at JAMS in Santa Ana,
California. The prevailing party shall be awarded its arbitrator,
expert and attorney fees, costs and expenses. Any interim or final
award of the arbitrator may be entered in any court of competent
jurisdiction.
6
26. Document
Review. Employer and Employee hereby acknowledge and agree
that each (i) has read this Agreement in its entirety prior to executing it,
(ii) understands the provisions and effects of this Agreement, (iii) has
consulted with such attorneys, accountants and financial and other advisors as
it or he has deemed appropriate in connection with their respective execution of
this Agreement, and (iv) has executed this Agreement voluntarily and
knowingly. EMPLOYEE
HEREBY UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT HAS BEEN
PREPARED BY LEGAL COUNSEL TO THE EMPLOYER AND THAT HE HAS NOT RECEIVED ANY
ADVICE, COUNSEL OR RECOMMENDATION WITH RESPECT TO THIS AGREEMENT FROM SUCH
COUNSEL.
27. Entire Agreement This
Agreement and the Employee Proprietary Information and Inventions Agreement
dated as of the date hereof together with any understanding or modifications
thereof as agreed to in writing by the parties, shall constitute the entire
agreement between the parties hereto.
7
IN WITNESS WHEREOF, the
parties have caused the Agreement to be executed and delivered as of the date
first written above.
|
EMPLOYER:
|
|
|
By:
|
|
|
Rowland
W. Day II,
|
|
|
Chief
Executive Officer
|
|
|
EMPLOYEE:
|
|
| Xxxxxxx X. Xxxxxx | |
8
EXHIBIT
A
EMPLOYEE
CONFIDENTIALITY
AND
INVENTION
ASSIGNMENT AGREEMENT
This Employee Confidentiality and
Invention Assignment Agreement (the “Agreement”) is entered into this ___ day of
June, 2009 and is by and between Blindspot Alert, Inc. (the “Company”), and
Xxxxxxx X. Xxxxxx (the “Employee”).
In consideration of my employment or
continued employment by the Company, and for other valuable consideration, the
receipt and sufficiency of which is hereby acknowledged. The parties
agree as follows:
1. Employee
Acknowledgement. Employee
understand that the purpose of this Agreement is to make clear that Employee
will (a) maintain the confidentiality of Company’s trade secrets; (b) that
Employee will use the Company’s trade secrets for the exclusive benefit of the
Company; (c) any inventions that Employee creates will be owned by the Company;
(d) any prior or continuing activities that Employee had or has, will be kept
separate from the Company and they will not conflict with the Company’s
development of its proprietary rights; and (e) when and if Employee’s employment
terminates with the Company, Employee will not use Employee’s prior position
with the Company to the detriment of the Company.
2. Protection of the Company’s
Confidential Information.
a. Confidential Information. The
Company continually obtains, develops, compiles and owns certain proprietary and
confidential information that has great value in its business (“Confidential
Information”). Confidential Information includes all information which is not
generally known to the Company’s competitors and the public, and which has or
could have commercial value to the Company’s business. It includes not only
information disclosed by the Company (or its customers, affiliates or vendors)
to Employee during the course of Employee’s employment with the Company, but
also information developed or learned by the Employee during the course of
Employee’s employment with the Company, such as Inventions, as defined below.
Confidential Information includes, but is not limited to, the following
categories of information: information regarding the Company’s technology,
computer programs, computer codes, products, product specifications, techniques,
inventions, discoveries, improvements, methods, research, test results, or
know-how; information regarding the Company’s customers’ and vendors’
identities, characteristics, performance and agreements; information regarding
the Company’s affiliates’, sub-affiliates’ and employees’ characteristics,
performances and agreements; and information regarding the Company’s marketing,
multilevel marketing business sales and business plans, strategies, forecasts,
unpublished financial information, budgets, projections, and efforts. Employee
acknowledges that such information is secret, valuable and owned by the Company
and that the Company has exercised substantial efforts to preserve the
information’s secrecy.
9
b. Protection of Confidential
Information. During
and after Employee’s employment, Employee agrees to keep confidential, and not
to disclose to any third party or to make any use of Confidential Information of
the Company, except for the benefit of the Company and in the course of
Employee’s employment with the Company. Employee also agrees not to
remove or otherwise transmit Confidential Information or Inventions (as defined
below) from the premises or possession of the Company without the express prior
written consent of an authorized representative of the
Company. Employee acknowledges that he or she is aware that the
unauthorized disclosure of Confidential Information of the Company may be highly
prejudicial to its interests, an invasion of privacy, and an improper disclosure
of trade secrets.
c. Third Party
Information. Employee recognizes that the Company has received
and in the future will receive confidential or proprietary information from
third parties 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. Employee agrees to hold all such confidential or
proprietary information in the strictest confidence and not to disclose it to
any person, firm or corporation and to use it as necessary in carrying out work
for the Company consistent with the Company's agreement with such third
party.
d. Prior
Obligations. Employee acknowledges and
represents that Employee is not a party to any agreement or agreements (e.g.,
non-competition agreements, non-solicitation of customers agreements,
non-solicitation of employees agreements, confidentiality agreements, inventions
agreements, etc.) with a former employer, or any other person or entity, that
may restrict Employee’s ability to recruit or engage customers or service
providers on behalf of the Company, or otherwise relate to or restrict
Employee’s ability to perform any obligation or responsibility Employee may have
to the Company. Employee represents and warrants that Employee has
returned all property and confidential information belonging to all prior
employers.
e. Exclusive Employment and
Non-Solicitation of Customers, Affiliates, Sub-Affiliates or Employees.
Employee acknowledges the highly confidential nature of information regarding
the Company’s customers, affiliates, sub-affiliates, employees, agents,
independent contractors, suppliers, and consultants. The Employee
will not during Employee’s employment or within one year after it ends, without
the Company’s express written consent, directly or indirectly (i) hire, solicit,
recruit, or induce to leave the employ of the Company any employee, agent,
independent contractor or consultant of the Company; (ii) use the Company’s
Confidential Information to solicit the business of any clients or customers of
the Company (other than on behalf of the Company); or (iii) encourage to
terminate or alter any relationship between (a) the Company, and (b) any
customer, affiliate, sub-affiliate, employee, agent, independent contractor,
supplier, consultant, or any other person or company. During
Employee’s employment with the Company, Employee will not do anything to compete
with the Company’s present or contemplated business, nor will Employee plan or
organize any competitive business activity. The Employee agrees that
such activities would necessarily and inevitably involve disclosure or use of
Confidential Information in violation of this Agreement.
10
After
Employee’s employment, Employee may be employed by Advent Communications, Inc.
which has acted as a consultant to the multi level and direct sales
industries. If employed by Advent Communications, Inc., Employee
shall abide by all terms of this Agreement.
f. Prior Inventions and
Proprietary
Information. Except
as disclosed on Exhibit A to this Agreement, Employee does not know anything
about the Company’s Confidential Information, other than that which he or she
learned from the Company. Employee also has disclosed on Exhibit A-1
complete list of all Inventions and information proprietary to Employee and
which Employee wants to exclude from the application of this
Agreement.
3. Inventions.
a. Disclosure of
Inventions. Employee will promptly
disclose in writing and deliver to the Company by the 10th day of
the month following all discoveries, developments, designs, enhancements, ideas,
improvements, inventions, software, object codes, source codes, formulas,
processes, techniques, know-how, and data (whether or not patentable or
registrable under copyright or similar statutes) made, conceived, reduced to
practice, or learned by Employee (either alone or jointly with others) during
each month of Employee’s employment, that are related to or useful in the
business of the Company, or which result from tasks assigned to Employee by the
Company, or from the use of premises owned, leased, or otherwise acquired by the
Company. For the purposes of this Agreement, all of the foregoing are
referred to as Inventions.
b. Assignment/Ownership of
Inventions. Employee
acknowledges and agrees that all Inventions other than those listed in Exhibit A
belong to and shall be the sole property of the Company and shall be Inventions
of the Company subject to the provisions of this Agreement. Employee
assigns to the Company all right, title, and interest Employee may have or may
acquire in and to all Inventions. Employee agrees to sign and deliver
to the Company (either during or subsequent to Employee’s employment) such other
documents as the Company considers desirable to evidence the assignment of all
rights of Employee, if any, in any Inventions to the Company and the Company’s
ownership of such Inventions. Any provision in this Agreement
requiring Employee to assign rights to an Invention does not apply to any
invention that qualifies under California Labor Code §2870, which section is
reproduced in the attached Written Notification to Employee (Exhibit
B-1).
c. Power of
Attorney. In the event the
Company is unable to secure Employee’s signature on any document necessary to
apply for, prosecute, obtain, or enforce any patent, copyright, or other right
to protection relating to any Invention, whether due to mental or physical
incapacity or any other cause, Employee hereby irrevocably designates and
appoints the Company and each of its duly authorized officers and agents as
Employee’s agent and attorney-in-fact, to act for and in Employee’s behalf and
stead to execute and file any such document and to do all other lawfully
permitted acts to further the prosecution, issuance, and enforcement of patents,
copyrights, or other rights or protections with the same force and effect as if
executed and delivered by the Employee.
11
4. Termination of
Employment.
a. Delivery of Documents and
Data Upon Termination of
Employment.
In the event of termination (voluntary or otherwise) of Employee’s employment
with the Company, Employee agrees, promptly and without request, to deliver to
and inform the Company of all documents and data pertaining to Employee’s
employment and the Confidential Information and Inventions of the Company,
whether prepared by the Employee or otherwise coming into Employee’s possession
or control, and to sign Exhibit C-1 to this Agreement. Employee will
not retain any written or other tangible material containing any information
concerning or disclosing any of the Confidential Information or Inventions of
the Company. Employee recognizes that the unauthorized taking of any
of the Company’s trade secrets is a crime under California Penal Code § 499(c)
and is punishable by imprisonment in state prison or in a county jail for a time
not exceeding one year, or by a fine not exceeding five thousand dollars
($5,000), or by both such fine and such imprisonment. Employee
further recognizes that such unauthorized taking of the Company’s trade secrets
also could result in civil liability under California’s Uniform Trade Secret Act
(Civil Code §§ 3426-3426.11), and that willful misappropriation may result in an
award against Employee for triple the amount of the Company’s damages and the
Company’s attorney’s fees in collecting such damages.
b. Obligations of Employee
After Termination of Employment.
In the event of termination (voluntary or otherwise) of
Employee’s employment with the Company, Employee will protect the value of the
Confidential Information and Inventions of the Company and will prevent their
misappropriation or disclosure. Employee will not disclose or use to
Employee’s benefit (or the benefit of any third party) or to the detriment of
the Company any Confidential Information or Invention.
5. Injunctive
Relief. Because Employee’s
breach of this Agreement may cause the Company irreparable harm for which money
is inadequate compensation, Employee agrees that the Company will be entitled to
seek extraordinary relief in court, including but not limited to temporary
restraining orders, preliminary injunctions and permanent injunctions without
the necessity of posting a bond or other security and in addition to and without
prejudice to any other rights or remedies that the Company may have for a breach
of this Agreement.
6. Attorney’
Fees. If any action is
necessary to enforce this Agreement, the prevailing party shall be entitled to
recover its attorneys’ fees.
7. Amendment and Binding
Effect. This
Agreement may not be amended except by an instrument in writing signed by both
parties. This Agreement shall be binding on the heirs, executors,
administrators, and other legal representatives and assigns of Employee, and is
for the benefit of the Company and its successors and assigns.
8. Governing
Law. This Agreement shall be
governed by the laws of the State of California.
9. Entire
Understanding. This Agreement expresses the entire understanding of
the parties about the described subject matter, superseding all prior or
contemporaneous oral or written agreements and understanding between the parties
with respect to the subject matter.
12
10. Cumulative
Remedies. Each
and all of the several rights and remedies provided for in this Agreement shall
be cumulative. No one right or remedy shall be exclusive of the
others or of any right or remedy allowed in law or in equity. No
waiver or indulgence by the Company of any failure by Employee to keep or
perform any promise or condition of this Agreement shall be a waiver of any
preceding or succeeding breach of the same or any other promise or
condition. No waiver by the Company of any right shall be construed
as a waiver of any other right. Any waiver by the Company or by the
Employee must be in writing and signed by both the Employee, if he or she is
seeking to waive any of Employee’s rights under this Agreement, or by an officer
of the Company (other than the Employee) or some other person duly authorized by
the Company. The Company shall not be required to give notice to
enforce strict adherence to the terms of this Agreement.
11. Severability.
If a court finds any provision of this Agreement invalid or unenforceable as
applied to any circumstance, the remainder of this Agreement and the application
of such provision to the other persons or circumstances shall be interpreted so
as best to effect the intent of the parties hereto. The parties
further agree to replace any such void or unenforceable provision of this
Agreement with a valid and enforceable provision that will achieve, to the
extent possible, the economic, business, and other purposes of the void or
unenforceable provision.
12. Employment
Terms. Employee understands that this
Agreement is an integral part of Employee’s contract of employment with the
Company.
13. ADVICE OF
COUNSEL. EMPLOYEE ACKNOWLEDGES THAT, IN EXECUTING THIS
AGREEMENT, EMPLOYEE HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT
LEGAL COUNSEL AND EMPLOYEE HAS READ AND UNDERSTANDS ALL OF THE TERMS AND
PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY
PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
|
EMPLOYEE
|
||||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Its:
|
Date:
|
|||
|
Date:
|
||||
13
EXHIBIT
A-1
EMPLOYEE
STATEMENT
1. Confidential
Information. Except as set forth
below, I acknowledge at this time that I know nothing about the business or the
Confidential Information or Inventions of the Company, except information that
has been disclosed to me by the Company (if none, so state): [specify
information previously known about the Company].
2. Prior
Inventions. Except as set forth
below, I acknowledge at this time that I have not made or reduced to practice,
alone or jointly with others, any Inventions (if none, so state): [specify
inventions].
3. Conflicting
Relationships. Except as set forth below, I
acknowledge that I have no other current or prior agreements, relationships, or
commitments that conflict with my relationship with the Company under my
Confidentiality and Invention Assignment Agreement (if none, so state): [specify
any conflicts].
|
Date:
|
||||
|
Employee’s
signature
|
|
Name:
|
|
14
EXHIBIT
B-1
WRITTEN
NOTIFICATION TO EMPLOYEE
In accordance with California Labor
Code §2872, you are hereby notified that your Confidentiality and Invention
Assignment Agreement does not require you to assign to the Company an Invention
for which no equipment, supplies, facility, or trade secret information of the
Company was used and that was developed entirely on your own time, and does not
relate to the business of the Company or to the Company’s actual or demonstrably
anticipated research or development, or does not result from any work performed
by you for the Company.
Following is the text of California
Labor Code §2870:
|
|
(a)
|
Any
provision in an employment agreement which provides that an employee shall
assign, or offer to assign, any of his or her rights in an invention to
his or her employer shall not apply to an invention that the employee
developed entirely on his or her own time without using the employer’s
equipment, supplies, facilities, or trade secret information except for
those inventions that either:
|
(1) Relate
at the time of conception or reduction to practice of the invention to the
employer’s business, or actual or demonstrably anticipated research or
development of the employer, or
(2) Result
from any work performed by the employee for the employer.
|
|
(b)
|
To
the extent a provision in an employment agreement purports to require an
employee to assign his invention otherwise excluded from being required to
be assigned under subdivision (a), the provision is against the public
policy of this state and is
unenforceable.
|
I hereby acknowledge receipt of this
written notification.
|
Date:
|
||||
|
Employee’s
signature
|
|
Name:
|
|
15
EXHIBIT
C-1
TERMINATION
CERTIFICATION
This is to certify that I do not have
in my possession, nor have I failed to return, any Confidential Information (as
defined in my Confidentiality and Invention Assignment Agreement with the
Company (the “Agreement”) or copies of such information, or other documents or
materials, equipment, or other property belonging to the Company.
I further certify that I have complied
with and will continue to comply with all of the terms of the Agreement,
including the reporting of any Inventions (as defined in the Agreement)
conceived or made by me that are covered by the Agreement.
I agree that, in compliance with the
Agreement, I will preserve as confidential and not use any Confidential
Information, Inventions, or other information that has or could have commercial
value or other utility in the business in which the Company is engaged or in
which it contemplates engaging. I will not participate in the
unauthorized disclosure or use of information that could be detrimental to the
interests of the Company, whether or not such information is identified as
Confidential Information by the Company.
I further agree that for twelve (12)
months from the date of this Certificate, I shall not either directly or
indirectly solicit, induce, recruit or encourage any of the Company's employees
or consultants to terminate their relationship with the Company, or attempt to
solicit, induce, recruit, encourage or take away employees or consultants of the
Company, either for myself or for any other person or entity. Further, I shall
not at any time use any Confidential Information of the Company to negatively
influence any of the Company's clients or customers from purchasing Company
products or services or to solicit or influence or attempt to influence any
client, customer or other person either directly or indirectly, to direct his or
its purchase of products and/or services to any person, firm, corporation,
institution or other entity in competition with, the business of the
Company.
On termination of my employment with
the Company I will be employed by _____________________, and will be working in
connection with the following listed projects:
|
Date:
|
||||
|
Employee’s
signature
|
|
Name:
|
|
16
