AT-WILL EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made as of November 24, 1999
(the "Effective Date"), by and between OMNIS TECHNOLOGY CORPORATION, a Delaware
corporation (the "Company"), and XXXXXX X. XXXXXXXX (the "Employee"). Except as
the context otherwise requires the term "Company" as used in this Agreement
shall refer to Omnis Technology Corporation and its subsidiaries. In
consideration of the mutual covenants contained in this Agreement, the Company
and the Employee agree as follows:
1. Employment. The Company agrees to employ the Employee and the Employee
agrees to be employed by the Company on the terms and conditions set forth in
this Agreement.
2. Capacity. The Employee shall initially serve the Company as its Chief
Evangelist. The Employee shall report directly to the Chief Operating Officer of
the Company. The Employee shall also serve the Company in such other or
additional offices as the Employee may be requested to serve by the Board of
Directors of the Company (the "Board of Directors"). In such capacity or
capacities, the Employee shall perform such services and duties in connection
with the business, affairs and operations of the Company as may be assigned or
delegated to the Employee from time to time by or under the authority of the
Board of Directors.
3. At-Will. The Employee's employment under this Agreement by the Company
("Employment") shall commence on the Effective Date and shall be terminable
at-will but otherwise shall be subject to all of the provisions of this
Agreement. "Terminable at will" means that Employee is free to end the
Employment of the Employee at any time for any reason or no reason, with or
without cause and with or without notice; and similarly the Company may end the
Employment of the Employee at any time for any legal reason, with or without
cause and with or without notice.
4. Compensation and Benefits. The regular compensation and benefits payable
to the Employee by the Company under this Agreement shall be as follows:
(a) Salary. Commencing on the Effective Date, for all services rendered
by the Employee under this Agreement, the Company shall pay the Employee a base
salary (the "Base Salary") at the annual rate of One Hundred Fifty Thousand
Dollars ($150,000). The Base Salary shall be payable in periodic installments in
accordance with the Company's usual practices for its senior employees. The
Board of Directors of the Company further may, but shall not be obligated to,
authorize additional compensation for Employee in the
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form of bonuses or otherwise as the Board deems appropriate in its sole
discretion from time to time.
(b) Stock Options.
(i) The Company shall grant to the Employee as of the Effective
Date options to purchase 55,000 shares of the Common Stock of the Company
("Common Stock") pursuant to a separate Stock Option Agreement between the
Company and the Employee in the form attached hereto ("First Option Agreement");
such options shall vest over a period of three (3) years from the Effective Date
or sooner as specified in such Option Agreement and shall have an option
exercise price of Seven Dollars Sixty-Two and One-Half Cents ($7.625) per share,
which is 100 percent of the closing price of the Common Stock on the Effective
Date.
(ii) Provided the Employee remains employed by the Company for a
period of Ninety (90) days after the Effective Date (February 21, 2000), the
Company also shall grant to the Employee as of February 22, 2000 ("Second Grant
Date") options to purchase an additional 20,000 shares of the Common Stock of
the Company ("Common Stock") pursuant to a separate Stock Option Agreement
between the Company and the Employee in the form attached hereto ("Second Option
Agreement"); such options shall vest over a period of three (3) years from the
Second Grant Date or sooner as specified in such Option Agreement and shall have
an option exercise price of 100 percent of the closing price of the Common Stock
on the Second Grant Date.
(iii) In the event of any conflict between this Agreement and any
of the Option Agreements with respect to the receipt of such Common Stock by
Employee, such Option Agreement shall control; provided that such Option
Agreements shall not affect the at-will nature of the Employment of the
Employee.
(c) Regular Benefits. The Employee shall also be entitled to
participate in any employee benefit plans, medical insurance plans, retirement
plans and other benefit plans which the Company may from time to time have in
effect for senior employees or for all or most of its employees. Such
participation shall be subject to the terms of the applicable plan documents,
generally applicable policies of the Company, applicable law and the discretion
of the Board of Directors, the Compensation Committee of the Board of Directors
or any administrative or other committee provided for by any such plan. Nothing
in this Agreement shall be construed to create any obligation on the part of the
Company to establish any such plan or to maintain the effectiveness of any such
plan which may be in effect from time to time.
(d) Vacation. The Employee shall be entitled to the same weeks of paid
vacation during each full year that Employee is employed hereunder as generally
available to
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senior managerial employees of the Company with the same period of service. In
the event the employment of Employee is terminated, Employee shall be paid for
all accrued and unused vacation time.
(e) Expenses. The Company shall reimburse Employee for all
appropriately documented, reasonable business expenses incurred by Employee in
accordance with the established the Company policies for managerial employees
which the Company may amend in its sole discretion.
(f) Taxation of Payments and Benefits. The Company shall have the right
to make deductions, withholdings and tax reports with respect to payments and
benefits under this Agreement to the extent that it reasonably and in good faith
believes it is required to do so under applicable law. Payments to Employee
under this Agreement shall be in amounts net of any such deductions or
withholdings. Nothing in this Agreement shall be construed to require the
Company to make any payments to compensate the Employee for any adverse tax
effect associated with any payment or benefit or for any deduction or
withholding from any payment or benefit.
(g) Exclusive. The Employee shall not be entitled to any payment or
benefit other than as provided in this Agreement.
5. Duties. During the Employment of the Employee, the Employee shall,
subject to the direction and supervision of the Chief Operating Officer of the
Company or his or her designee, devote the Employee's full business time, best
efforts and business judgment, skill and knowledge to the advancement of the
Company's interests and to the discharge of the Employee's duties and
responsibilities under this Agreement. Employee shall further duly, punctually
and faithfully perform and observe any and all rules and regulations which the
Company may now or shall hereafter establish governing the conduct of its
business or its employees. Employee's performance of his duties shall at all
times be rendered to the Company's satisfaction.
6. Confidential Information; Non-Competition.
(a) Confidential Information. For these purposes "Confidential
Information" shall be collectively defined as any and all technical or
engineering information, know-how, data, designs, diagrams, plans,
specifications, structures, computer codes, documents, patent applications,
trade secrets, ideas, concepts, inventions, products, prototypes, processes,
formulae, works in process, systems, technologies, marketing plans, the identity
of or other information regarding actual or potential customers or trade
contacts, business or other financial information, and other confidential and
proprietary information of the Company or any of its customers, in whatever
form, whether disclosed by the Company or otherwise observed or learned by
Employee during the course of employment, and whether or not labeled or
identified as confidential or proprietary. "Confidential Information" shall also
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include any confidential or proprietary information of a third party disclosed
to the Company or any of its customers pursuant to a nondisclosure or
confidentiality agreement to which the Company is a party; and any Invention as
herein defined.
(b) Protection of Confidential Information.
(i) Employee acknowledges and agrees that the Confidential
Information of the Company is proprietary, constitutes a valuable asset of the
Company, and is the sole property of the Company. Without limiting the
foregoing, Employee acknowledges and agrees that all writings and other tangible
materials in any form that contain Confidential Information of the Company that
are produced by Employee or others or that otherwise come into Employee's
possession are and will remain the property of the Company, and will be treated
as Confidential Information.
(ii) Employee agrees that at all times during and after the
Employment of the Employee, Employee shall hold in trust, maintain as
confidential and not disclose to any third person or entity or make any use of
any of the Confidential Information, except for the benefit of the Company or as
is strictly required in the course of the Employment of the Employee. Employee
acknowledges that the unauthorized disclosure of Confidential Information may be
highly prejudicial to their interests, an invasion of privacy, and an improper
disclosure of trade secrets.
(c) Injunction. The Employee agrees that it would be difficult to
measure any damages caused to the Company which might result from any breach by
the Employee of the promises set forth in this Section, and that in any event
money damages would be an inadequate remedy for any such breach. Without
limiting any other remedies or rights of the Company hereunder, the Employee
agrees that if the Employee breaches, or proposes to breach, any portion of this
Agreement, the Company shall be entitled to an injunction or other appropriate
equitable relief to restrain any such breach without showing or proving any
actual damage to the Company.
7. Inventions.
(a) Inventions. For purposes of this Agreement, "Inventions" means any
and all inventions, discoveries, designs, developments, innovations, concepts,
improvements, techniques, processes, systems, structures, technologies,
software, hardware, formulas, know-how, products, work product and data, whether
or not patentable or reduced to practice or in a commercially useable form, and
all original works of authorship, whether or not copyrightable, and all
derivative works thereof, which result from work performed by Employee for the
Company (either alone or in cooperation with others) or with the tools or
equipment of the Company or which relate to or may be useful in any business or
any actual or demonstrably anticipated research or development engaged in or
planned by the Company.
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(b) Disclosure. Employee shall promptly disclose in writing to the
Chief Operating Officer of the Company any and all Inventions made, conceived,
reduced to practice, or learned by Employee, either alone or in cooperation with
others, during the period of the Employment of the Employee with the Company
(including off-duty hours) that to any extent relate to or may be useful in any
business or any actual or demonstrably anticipated research or development
engaged in or planned by the Company, even if any such invention is claimed for
any reason to belong to Employee or to a person or entity other than the
Company.
(c) Assignment. Employee agrees that all Inventions made, conceived,
reduced to practice, or learned by Employee during the Employment of the
Employee (including off-duty hours), either alone or in cooperation with others,
are "works made for hire" and belong to and are the sole property of the Company
and are Inventions of the Company subject to the provisions of this Agreement.
Employee hereby assigns to the Company, without royalty or further compensation,
all right, title, and interest Employee has or may have or may acquire in and to
any and all such Inventions and all modifications and enhancements and
derivations thereof, including but not limited to patents and copyrights.
Employee agrees that the Company or its designee will be the sole owner of all
domestic and foreign patents, patent rights, copyrights, and all other rights
pertaining to all such Inventions.
(d) Evidence of Assignment. At the request of the Company, Employee
agrees to sign and deliver to the Company, either during or subsequent to the
Employment of the Employee, such other documents or instruments as the Company
considers desirable to evidence the assignment to the Company of any and all
rights of Employee, if any, in any Inventions and the Company's ownership of the
Inventions. Employee further agrees as to all such Inventions to assist the
Company as requested, either during or subsequent to the Employment of the
Employee, in obtaining, registering, and from time to time enforcing in any
country, the Company's rights to the Inventions, including without limitation
the testifying in a suit or other proceeding involving any Invention. If such
assistance is rendered by Employee subsequent to the Employment of the Employee
with the Company, Employee shall be reimbursed for all reasonable expenses
incurred and for any and all lost wages or salary related thereto.
(e) California Labor Code Section 2870. Any provision in this Agreement
that requires Employee to assign rights to an Invention shall not apply to any
invention that is exempted pursuant to the provisions of California Labor Code
Section 2870, the text of which is attached to this Agreement as Exhibit A. This
section provides that the requirement to assign "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."
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8. Prior Knowledge and Inventions. Except as is disclosed on Schedule 1 to
this Agreement, Employee has no knowledge of the Confidential Information, other
than information Employee has learned or observed from the Company. Employee has
disclosed on Schedule 1 a complete list of all inventions, original works of
authorship, developments, improvements and trade secrets that Employee claims
are proprietary to Employee, and that Employee desires to exclude from the
application of this Agreement. Employee represents that this list is complete to
the best of his knowledge, and that the exclusion of any inventions from the
list will not materially affect Employee's ability to perform his obligations
under this Agreement. The Company agrees to receive and hold all such
disclosures in confidence.
9. Prior Commitments. Employee has no other agreements, relationships, or
commitments to any other person or entity that conflict with Employee's
obligations to the Company under this Agreement, except as disclosed on Schedule
1. Employee shall not disclose to the Company, or use, or induce the Company to
use, any proprietary or confidential information or trade secrets of others.
Employee represents and warrants that Employee has returned all property and
confidential information belonging to all prior or concurrent companies
employing or engaging Employee.
10. Non-Competition and Non-Solicitation. At all times during which the
Employee is employed by the Company and for one (1) year after termination of
the Employment of the Employee hereunder, except in connection with such
Employee's duties as an employee or consultant of the Company or its
subsidiaries, the Employee (i) will not, directly or indirectly, whether as an
officer, director, consultant, agent, employee, contractor, owner, partner,
joint venturer or stockholder of another entity, engage, participate, assist or
invest in any Competing Business (as hereinafter defined), other than as a
stockholder of less than one percent (1%) of the equity securities of a publicly
held corporation; (ii) will not in any manner directly or indirectly solicit any
of the Company's employees for a Competing Business or otherwise induce or
attempt to induce such employees to terminate their employment with the Company
during the period of Employment of the Employee and for a period of one (1) year
thereafter; and (iii) will refrain from soliciting or encouraging any customer
or supplier to terminate or otherwise modify adversely its business relationship
with the Company. The Employee understands that the restrictions set forth in
this Section are intended to protect the Company's interest in its Confidential
Information and established employee, customer and supplier relationships and
goodwill, and agrees that such restrictions are reasonable and appropriate for
this purpose. "Competing Business" shall mean a business which directly competes
against the application development or RAD tool products designed or distributed
by the Company or any of its subsidiaries.
11. Cooperation. During and after the Employment of the Employee, (i) the
Employee shall cooperate fully with the Company in the defense or prosecution of
any claims or actions now in existence or which may be brought in the future
against or on behalf of the Company which relate to events or occurrences that
occurred while the Employee was
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employed by the Company, and (ii) the Employee shall cooperate fully with the
Company in connection with any investigation or review of any federal, state or
local regulatory authority related to events that occurred during the Employment
of the Employee. The Employee's cooperation shall include, but not be limited
to, meeting with counsel to prepare for discovery or trial and to act as a
witness on behalf of the Company at mutually convenient times. The Company shall
reimburse the Employee for any actual out-of-pocket expenses incurred by the
Employee in connection with this Section.
12. Termination. The Employment of the Employee shall terminate as set
forth in this Section:
(a) Termination by the Company for Cause. In addition to its other
rights and remedies, the Company may terminate the employment of Employee
immediately "for cause" upon the occurrence of any of the following events:
(i) Materially dishonest statements or acts of the Employee with
respect to the Company or any affiliate;
(ii) Unethical practices or conduct by the Employee in connection
with the business of the Company or any affiliate;
(iii) The commission of any felony (excluding DWI and similar
traffic offenses) or any crime involving moral turpitude;
(iv) The use of alcohol or drugs by the Employee if the Company
determines, in its sole discretion, that such use of such alcohol or drugs
materially affects the performance of Employee's duties under this Agreement or
otherwise violates Company policy;
(v) Gross negligence or willful misconduct of the Employee with
respect to the Company or any affiliate of the Company;
(vi) The imparting, disclosure or use of any Confidential
Information in material violation of this Agreement; or
(vii) Material breach by the Employee of any of the Employee's
obligations under this Agreement.
(b) Termination At Will by Either Party. Either party also may
terminate this Agreement without cause immediately upon written notice to the
other party at any time without cause.
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(c) Other Events of Termination. This Agreement shall also terminate in
the event of the death of Employee; or the medically determinable physical or
mental impairment of Employee which prevents Employee from fully performing the
essential functions of his position with the Company, which impairment can be
expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve (12) months.
(d) Certain Termination Benefits. Except as specifically provided in
this subsection or as otherwise required by law, all compensation and other
benefits payable to the Employee under this Agreement shall terminate on the
date of termination of the Employment of the Employee. Solely in the event the
Company terminates the employment of the Employee without cause, the Company
shall pay the Employee a severance payment equal to the Base Salary at the rate
then in effect pursuant to Section 4(a) hereof for six (6) months after the date
of termination, payable during the regular pay periods of the Company and
subject to tax withholdings.
13. Duties Upon Termination.
(a) Documents. Upon termination of the Employment of Employee, Employee
shall not retain and shall promptly and without request deliver to the Company
all documents and data and all copies thereof pertaining to (i) his employment,
(ii) the Confidential Information, and (iii) the Inventions, whether prepared by
Employee or otherwise in the possession or control of the Employee or the
Employee's agent. The Employee also agrees to sign and deliver the Termination
Certification attached hereto as Exhibit B to this Agreement or a substantially
similar certification as may be requested by the Company.
(b) Continuing Obligations. The Employee further agrees that following
termination of his employment, he shall continue to be bound by the terms and
restrictions of this Agreement relating to nonsolicitation, Confidential
Information and Inventions.
14. Integration. This Agreement and all exhibits and schedules attached
hereto contain the entire agreement of the parties relating to the subject
matter hereof and supersede any and all other agreements, discussions or
understandings of any kind between the parties with respect thereto; provided
however that (a) this Agreement shall not supersede any separate stock option
agreement between the Company and the Employee, and (b) any confidential or
proprietary information disclosed between the parties pursuant to any prior or
superseded agreement shall be part of the "Confidential Information" for all
purposes hereof. No waiver, amendment or modification of any provision of this
Agreement shall be effective unless in writing and signed by authorized
representatives of both parties.
15. Assignment; Successors and Assigns. This Agreement and the rights and
obligations of the Employee under this Agreement are personal and may not be
assigned,
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transferred, pledged or encumbered by the Employee. The Company shall be
entitled to assign any and all of its rights and obligations hereunder. Subject
to the foregoing, this Agreement shall inure to the benefit of and be binding
upon the parties hereto, the officers, directors, employees, agents, owners,
shareholders, representatives, successors and assigns of the Company, and the
heirs, devisees, spouses, agents, representatives, successors and assigns of the
Employee.
16. Enforceability. If any portion or provision of this Agreement
(including, without limitation, any portion or provision of any section of this
Agreement) shall to any extent be declared illegal or unenforceable by a court
of competent jurisdiction, then the remainder of this Agreement, or the
application of such portion or provision in circumstances other than those as to
which it is so declared illegal or unenforceable, shall not be affected thereby,
and each portion and provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
17. Waiver. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of any party to
require the performance of any term or obligation of this Agreement, or the
waiver by any party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
18. Notices. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and delivered
in person or sent by a nationally recognized overnight courier service or by
registered or certified mail, postage prepaid, return receipt requested, to the
Employee at the last address the Employee has filed in writing with the Company
or, in the case of the Company, at its principal place of business in the United
States, attention of the Chief Operating Officer, and shall be effective on the
date of delivery in person or by courier or five (5) days after the date mailed.
19. Amendment. This Agreement may be amended or modified only by a written
instrument signed by the Employee and by a duly authorized representative of the
Company.
20. Governing Law. This Agreement shall be governed by the laws of the
State of California without reference to principles of conflicts of law.
21. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be taken to be
an original; but such counterparts shall together constitute one and the same
document.
22. Legal Counsel; Certifications.
a. Employee acknowledges, represents and warrants that he has had the
opportunity to be represented by and to fully consult with independent legal
counsel of
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Employee's own choosing in connection with the terms and conditions of this
Agreement and all matters or issues related thereto; and that Employee has
conducted such an investigation of the Company and its business and prospects as
Employee has deemed necessary.
b. EMPLOYEE FURTHER CERTIFIES THAT EMPLOYEE HAS CAREFULLY READ THIS
AGREEMENT, UNDERSTANDS ITS TERMS, AND FREELY AND VOLUNTARILY AGREES TO THESE
TERMS. EMPLOYEE FURTHER ACKNOWLEDGES THAT EMPLOYEE HAS REVIEWED EXHIBIT A AND
SCHEDULE 1 AND IN THIS CONNECTION HAS RECEIVED A COPY OF THE WRITTEN
NOTIFICATION TO EMPLOYEE CONTAINING THE TEXT OF CALIFORNIA LABOR CODE SECTION
2870.
IN WITNESS WHEREOF, this Employment Agreement has been executed and entered
into by the parties as of the date first above written.
OMNIS TECHNOLOGY CORPORATION
By: ______________________________
Xxxxxxx Xxxxx, President
EMPLOYEE:
-----------------------------------
Xxxxxx X. Xxxxxxxx
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EXHIBIT A
WRITTEN NOTIFICATION TO EMPLOYEE
In accordance with California Labor Code Section 2870, you are hereby
notified that the Employment Agreement between you and Omnis Technology
Corporation (the "Company") does not require you to assign to the Company any
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 that does not relate to the business of the Company or to the
Company's actual or demonstrably anticipated research or development, and does
not result from any work performed by you for the Company.
The text of California Labor Code Section 2870 is set forth below:
"CALIFORNIA LABOR CODEss. 2870
INVENTION ON OWN TIME-- EXEMPTION FROM AGREEMENT.
"(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 an 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.
Dated: As of November 24, 1999 ____________________________
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SCHEDULE 1
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EXHIBIT B
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 the Employment Agreement
between Omnis Technology Corporation and me ("Agreement") or any copies of such
information, or other documents or materials, equipment, or other property
belonging to the Company or any of its customers or subject to any agreement
between the Company and any third party.
I further certify that I have complied with and will continue to comply
with the terms of the Agreement which remain enforceable by their terms
following termination of my employment, including but not limited to (a) the
disclosure and reporting of any Inventions as defined in the Agreement, and (b)
all confidentiality, nondisclosure and/or use restrictions imposed by the
Agreement.
Dated: _____________ __________________________________
Name: ____________________________
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