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EXHIBIT 10.5
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of
January 5, 1998, by and between iMall, Inc., a Nevada corporation (the
"Company") and Xxxxxxx Xxxxxxxxxx, an individual ("Employee"), with reference to
the following:
A. The Company desires to employ Employee on the terms and
conditions set forth in this Agreement.
B. Employee desires to be so employed.
NOW, THEREFORE, based on the foregoing premises and in consideration
of the covenants set forth in this Agreement, the parties hereto hereby agree as
follows:
1. Term of Employment. The Company hereby employs Employee and
Employee accepts such employment commencing on February 2, 1998 and terminating
on that date which is five (5) years thereafter, unless sooner terminated in
accordance with the terms of this Agreement.
2. Services to be Rendered.
2.1 Duties. Employee shall serve as Chief Executive
Officer of the Company and shall have the responsibilities, duties and powers
customarily associated with such position. Employee shall report directly to the
Board of Directors of the Company, and shall perform his duties pertaining to
the business of the Company (the "Company Business") subject to the direction of
the Board of Directors and to such limits upon Employee's authority as the Board
of Directors may from time to time impose. Employee's principal place of work
hereunder shall be located in Los Angeles County, California. Employee shall be
subject to the policies and procedures generally applicable to senior executive
employees of the Company to the extent the same are not inconsistent with any
term of this Agreement.
2.2 Exclusive Services. Employee shall at all times
faithfully, industriously and to the best of his ability, experience and talent
perform to the satisfaction of the Board of Directors all of the duties that may
be assigned to Employee hereunder and shall devote all of his productive time
and efforts to the performance of such duties; provided, however, that Employee
may devote time to personal and family investments to the extent that the time
so spent does not conflict with the Company Business. The existence of such a
conflict shall be determined in good faith by the Board of Directors.
3. Compensation and Benefits. The Company shall pay the
following compensation and benefits to Employee during the term hereof, and
Employee shall
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accept the same as payment in full for all services rendered by Employee to or
for the benefit of the Company:
3.1 Salary. A salary ("Salary") of $195,000 per annum. The
Salary shall accrue in equal monthly installments in arrears and shall be
payable in accordance with the payroll practices of the Company in effect from
time to time. The Company shall review Employee's performance within thirty (30)
days after the end of each of the first four (4) years of Employee's employment
hereunder. Based upon such reviews, the Company may increase the Salary in such
amounts as the Compensation Committee of the Company determines in good faith.
The Company shall continue to pay to Employee the Salary paid during the
immediately-preceding year until the review has been conducted, at which time
the Company shall pay to Employee the amount that is necessary to effect the
adjustment under this Section 3.1 with respect to the installments of Salary
theretofore paid by the Company to Employee during the then-current year, and
payment of the adjusted Salary shall continue thereafter.
3.2 Car Allowance. The Company shall pay to Employee a car
allowance of $750 per month, which shall accrue in monthly installments in
arrears and be payable in accordance with the practices of the Company in effect
from time to time.
3.3 Fringe Benefits. Employee shall be entitled to
participate in benefits under the Company's benefit plans and arrangements,
including, without limitation, any employee benefit plan or arrangement made
available in the future by the Company to its senior executives, subject to and
on a basis consistent with the terms, conditions and overall administration of
such plans and arrangements. The Company shall have the right to amend or delete
any such benefit plan or arrangement made available by the Company to its senior
executives and not otherwise specifically provided for herein.
3.4 Expenses. The Company shall reimburse Employee for
reasonable out-of-pocket expenses incurred in connection with the Company
Business and the performance of his duties hereunder, subject to (i) such
policies as the Company may from time to time establish, (ii) Employee
furnishing the Company with evidence in the form of receipts satisfactory to the
Company substantiating the claimed expenditures, and (iii) Employee receiving
advance approval from the Company in case of expenses (or a series of related
expenses) in excess of $2,500.
3.5 Vacation. Employee shall be entitled to the number of
paid vacation days in each calendar year determined by the Company from time to
time for its senior executive officers. Employee shall also be entitled to all
paid holidays given to the Company's senior executive officers.
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3.6 Bonus. In addition to the Salary to which Employee is
entitled pursuant to Section 3.1, and within thirty (30) days of the end of each
year of Employee's employment hereunder, the Company shall grant to Employee an
annual bonus in an amount at least equal to twenty percent (20%) of the Salary
paid to Employee during the immediately-preceding year, any amount in excess
thereof to be granted by the Compensation Committee of the Company after its
review of Employee's performance pursuant to Section 3.1 above.
3.7 Withholding and other Deductions. All compensation
payable to Employee hereunder shall be subject to such deductions as the Company
is from time to time required to make pursuant to law, governmental regulation
or order.
4. Stock Options. The Company shall grant Employee options to
purchase three million (3,000,000) shares of the common stock of the Company
("Options"). The principal terms of the Options are set forth below and all of
the terms of the Options are set forth in a stock option agreement (a copy of
which is attached hereto as Exhibit A and incorporated herein by this
reference). The exercise price of each Option is $.65 per share. The Options
will vest in Employee as follows: (i) one million (1,000,000) Options shall vest
immediately upon the date of this Agreement and (ii) the remaining two million
(2,000,000) Options shall vest at the rate of one million (1,000,000) Options on
each of the first and second anniversary dates of Xx. Xxxxxxxxxx'x employment
with the Company.
4.1 Expiration of Options. All unexercised Options shall
expire on that date which is five (5) years after the date on which such Options
have vested.
4.2 Effect of Employee's Termination. If Employee is
terminated pursuant to 9.1 below, all Options that are unexercised at that time
shall expire on that date which is sixty (60) days after the date of such
termination. If Employee is terminated pursuant to Section 9.2 below, all
Options that are unexercised at that time shall expire immediately.
4.3 Effect of Employee's Improper Termination of This
Agreement. If Employee resigns or terminates this Agreement for any reason other
than based on a material breach hereof by the Company, all Options that are not
vested in Employee at that time shall expire immediately.
4.4 Effect of Sale of the Company. All of the Options
shall vest in Employee immediately upon (i) the sale by the Company of all or
substantially all of its assets, (ii) the sale of fifty percent (50%) or more of
its outstanding shares, or (iii) the merger of the Company into another company
whereby the Company is not the surviving entity.
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5. Representations and Warranties of Employee. Employee
represents and warrants to the Company that (a) Employee is under no contractual
or other restriction or obligation which is inconsistent with the execution of
this Agreement, the performance of his duties hereunder, or the other rights of
the Company hereunder and (b) Employee is under no physical or mental disability
that would hinder the performance of his duties under this Agreement.
6. Certain Covenants.
6.1 Noncompetition. The parties hereto acknowledge that if
Employee were to compete with the Company, Employee would necessarily use
Confidential Information (as defined below) in doing so. Accordingly, during the
term of this Agreement (including, if Employee is terminated for good cause or
voluntarily terminates his employment hereunder, for the remainder of the term
of this Agreement after such termination) (the "Restricted Period"), Employee
shall not have any ownership interest (of record or beneficial) in, or have any
interest as an employee, salesman, consultant, officer or director in, or
otherwise aid or assist in any manner, any firm, corporation, partnership,
proprietorship or other business that engages in any county, city or part
thereof in the United States and/or any foreign country in a business which is
similar to that in which the Company is engaged in such county, city or part
thereof, so long as the Company, or any successor in interest of the Company the
business and goodwill of the Company, remains engaged in such business in such
county, city or part thereof or continues to solicit customers or potential
customers therein; provided, however, that Employee may own, directly or
indirectly, solely as an investment, securities of any entity which are traded
on any national securities exchange if Employee (a) is not a controlling person
of, or a member of a group which controls, such entity or (b) does not, directly
or indirectly, own one percent (1%) or more of any class of securities of any
such entity.
6.2 Trade Secrets. Employee acknowledges that the nature
of Employee's engagement by the Company is such that Employee will have access
to Confidential Information which has great value to the Company and that except
for Employee's engagement by the Company, Employee would not otherwise have
access to the Confidential Information. During the term of this Agreement and at
all times thereafter, Employee shall keep all of the Confidential Information in
confidence and shall not disclose any of the same to any other person, except
the Company's personnel entitled thereto and other persons designated in writing
by the Company. Employee shall not cause, suffer or permit the Confidential
Information to be used for the gain or benefit of any party outside of the
Company or for Employee's personal gain or benefit outside the scope of
Employee's engagement by the Company.
6.3 Solicitation of Business. Employee shall not during
the Restricted Period solicit or assist any other person to solicit any business
(other than for the Company) from any present or past customer of the Company;
or request or advise
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any present or future customer of the Company to withdraw, curtail or cancel its
business dealings with the Company; or commit any other act or assist others to
commit any other act which might injure the business of the Company.
6.4 Solicitation of Employees. Employee shall not during
the Restricted Period, directly or indirectly, hire, solicit or encourage to
leave the employment of the Company or any of its affiliates, any employee of
the Company or any of its affiliates or hire any such employee who has left the
employment of the Company or any of its affiliates within one (1) year of the
termination of such employee's employment with the Company or any of its
affiliates.
6.5 Solicitation of Consultants. Employee shall not during
the Restricted Period, directly or indirectly, hire, solicit or encourage to
cease work with the Company or any of its affiliates any consultant then under
contract with the Company or any of its affiliates within one (1) year of the
termination of such consultant's engagement by the Company or any of its
affiliates.
6.6 Rights and Remedies Upon Breach. If Employee breaches
or threatens to commit a breach of any of the provisions of this Section 6 (the
"Restrictive Covenants"), the Company shall have the following rights and
remedies, each of which rights and remedies shall be independent of the other
and severally enforceable, and all of which rights and remedies shall be in
addition to, and not in lieu of, any other rights and remedies available to the
Company under law or in equity:
(a) Specific Performance. The right and remedy to
have the Restrictive Covenants specifically enforced by any court having equity
jurisdiction, all without the need to post a bond or any other security or to
prove any amount of actual damage or that money damages would not provide an
adequate remedy, it being acknowledged and agreed that any such breach or
threatened breach will cause irreparable injury to the Company and that money
damages will not provide adequate remedy to the Company; and
(b) Accounting and Indemnification. The right and
remedy to require Employee (i) to account for and pay over to the Company all
compensation, profits, monies, accruals, increments or other benefits derived or
received by Employee or any associated party deriving such benefits as a result
of any such breach of the Restrictive Covenants; and (ii) to indemnify the
Company against any other losses, damages (including special and consequential
damages), costs and expenses, including actual attorneys' fees and court costs,
which may be incurred by them and which result from or arise out of any such
breach or threatened breach of the Restrictive Covenants.
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6.7 Severability of Covenants/Blue Pencilling. If any
court determines that any of the Restrictive Covenants, or any part thereof, is
invalid or unenforceable, the remainder of the Restrictive Covenants shall not
thereby be affected and shall be given full effect, without regard to the
invalid portions. If any court determines that any of the Restrictive Covenants,
or any part thereof, are unenforceable because of the duration of such provision
or the area covered thereby, such court shall have the power to reduce the
duration or area of such provision and, in its reduced form, such provision
shall then be enforceable and shall be enforced. Employee hereby waives any and
all right to attack the validity of the Restrictive Covenants on the grounds of
the breadth of their geographic scope or the length of their term.
6.8 Enforceability in Jurisdictions. The Company and
Employee intend to and do hereby confer jurisdiction to enforce the Restrictive
Covenants upon the courts of any jurisdiction within the geographical scope of
such covenants. If the courts of any one (1) or more of such jurisdictions hold
the Restrictive Covenants wholly unenforceable by reason of the breadth of such
scope or otherwise, it is the intention of the Company and Employee that such
determination not bar or in any way affect the right of the Company to the
relief provided above in the courts of any other jurisdiction within the
geographical scope of such covenants, as to breaches of such covenants in such
other respective jurisdictions, such covenants as they relate to each
jurisdiction being, for this purpose, severable into diverse and independent
covenants.
6.9 Definitions.
(a) In Sections 6.1 - 6.9 above, all references to the
Company mean not only the Company, but also any company, partnership or entity
which, directly or indirectly, controls, is controlled by or is under common
control with the Company.
(b) The term "Confidential Information", as used in this
Agreement, means all information or material not generally known by non-Company
personnel which (i) gives the Company some competitive business advantage or the
opportunity of obtaining such advantage or the disclosure of which could be
detrimental to the interests of the Company; (ii) which is owned by the Company
or in which the Company has an interest and (iii) which is either (A) marked
"Confidential Information," "Proprietary Information" or other similar marking,
(B) known by Employee to be considered confidential and proprietary by the
Company or (C) from all the relevant circumstances should reasonably be assumed
by Employee to be confidential and proprietary to the Company. Confidential
Information includes, but is not limited to, the following types of information
and other information of a similar nature (whether or not reduced to writing):
trade secrets, inventions, drawings, file data, documentation, diagrams,
specifications, know how, processes, formulas, models, flow charts, software in
various stages of development, source codes, object codes, categories of
information unique to the business, research and development
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procedures, research or development and test results, marketing techniques and
materials, marketing and development plans, price lists, pricing policies,
business plans, information relating to customers and/or suppliers' identities,
characteristics and agreements, financial information and projections, and
employee files. Confidential Information also includes any information described
above which the Company obtains from another party and which the Company treats
as proprietary or designates as Confidential Information, whether or not owned
or developed by the Company. NOTWITHSTANDING THE ABOVE, HOWEVER, NO INFORMATION
CONSTITUTES CONFIDENTIAL INFORMATION IF IT IS GENERIC INFORMATION OR GENERAL
KNOWLEDGE WHICH COVENANTOR WOULD HAVE LEARNED IN THE COURSE OF SIMILAR
EMPLOYMENT ELSEWHERE IN THE TRADE OR IF IT IS OTHERWISE PUBLICLY KNOWN AND IN
THE PUBLIC DOMAIN.
7. Proprietary Rights.
7.1 Disclosure of Employee's Knowledge. Employee shall
make available to the Company at no cost to the Company all knowledge possessed
by him relating to any methods, developments, inventions and/or improvements,
whether patented, patentable or unpatentable, which concern in any way the
Company Business, acquired by Employee during the term of employment, provided
that nothing herein shall be construed as requiring any disclosure where any
such method, development, invention and/or improvement is lawfully protected
from disclosure as a trade secret of any third party or by any other lawful bar
to such disclosure.
7.2 Ownership of Patent Rights, Copyrights, and Trade
Secrets. To the fullest extent permitted by California law, Employee shall
assign, and does hereby assign, to the Company all of Employee's right, title
and interest in and to all inventions, improvements, developments, trade
secrets, discoveries, computer software, tradenames and trademarks conceived,
improved, developed, discovered or written by Employee, alone or in
collaboration with others, during the term of this Agreement which relate in any
manner to the Company Business, whether or not the same shall be conceived,
improved, developed, discovered or written during customary working hours on the
Company's premises. During the term of this Agreement Employee shall promptly
and fully disclose to the Company all matters within the scope of this Section
7.2, and shall, upon request of the Company, execute, acknowledge, deliver and
file any and all documents necessary or useful to vest in the Company all of
Employee's right, title and interest in and to all such matters. All expenses
incurred in connection with the execution, acknowledgment, delivery and filing
of any papers or documents within the scope of this Section 7.2 shall be borne
by the Company. All matters within the scope of this Section 7.2 shall
constitute trade secrets of the Company subject to the provisions of Section
6.2, until such matters cease to be trade secrets by operation of law.
Notwithstanding the foregoing, however, Employee shall be under no obligation to
assign to the Company any right
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in or to any invention which qualifies fully under the provisions of Section
2870 of the California Labor Code, which section is reproduced in Exhibit B
attached hereto.
8. Insurance. The Company shall have the right to take out
life, health, accident, "key-man" or other insurance covering Employee, in the
name of the Company and at the Company's expense in any amount deemed
appropriate by the Company. Employee shall assist the Company in obtaining such
insurance, including, without limitation, submitting to any required
examinations and providing information and data required by insurance companies.
9. Termination.
9.1 Death or Total Disability of Employee. If Employee
dies or becomes totally disabled during the term of this Agreement, Employee's
employment hereunder shall automatically terminate. For these purposes Employee
shall be deemed totally disabled if Employee shall become physically or mentally
incapacitated or disabled or otherwise unable fully to discharge Employee's
duties hereunder for a period of ninety (90) consecutive calendar days or for
one hundred twenty (120) calendar days in any one hundred eighty (180)
calendar-day period.
9.2 Termination for Good Cause. Employee's employment
hereunder may be terminated by the Company for "good cause" by giving written
notice thereof to Employee. For the purposes of this Agreement, "good cause"
shall only mean Employee's (i) commission of a crime directly related to his
employment hereunder, (ii) conviction of a felony involving moral turpitude,
(iii) willful misconduct in the management of the business and affairs of the
Company or (iv) repeated failure to perform Employee's duties as may reasonably
be directed by the Board of Directors and as may be reasonably consistent with
Employee's office.
9.3 Severance Compensation. Upon the occurrence of any of
the events referred to in Sections 9.1 and 9.2 above, Employee (or Employee's
heirs or representatives) shall be entitled to receive only such portion (if
any) of the Salary as may theretofore have accrued but be unpaid on the date on
which the termination shall take effect.
9.4 Return of the Company's Property. If this Agreement is
terminated for any reason whatsoever, the Company shall have the right, at its
option, to require Employee to vacate his offices prior to the effective date of
termination and to cease all activities on the Company's behalf. Upon the
termination of his employment in any manner, Employee shall immediately
surrender to the Company all lists, books and records of, or in connection with,
the Company's business, and all other property belonging to the Company, it
being distinctly understood that all such lists, books and records, and other
documents, are the property of the Company.
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10. Arbitration. Any claim or controversy arising out of or
relating to this Agreement shall be settled by arbitration in Los Angeles,
California, in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, and judgment on the award rendered by the arbitrators
may be entered in any court having jurisdiction. There shall be three (3)
arbitrators, one (1) to be chosen directly by each party at will, and the third
arbitrator to be selected by the two (2) arbitrators so chosen. Each party shall
pay the fees of the arbitrator it selects and of its own attorneys, the expenses
of its witnesses and all other expenses connected with presenting its case.
Other costs of the arbitration, including the cost of any record or transcripts
of the arbitration, administrative fees, the fee of the third arbitrator, and
all other fees and costs, shall be borne equally by the parties.
11. General Relationship. Employee shall be considered an
employee of the Company within the meaning of all federal, state and local laws
and regulations including, but not limited to, laws and regulations governing
unemployment insurance, workers' compensation, industrial accident, labor and
taxes.
12. Miscellaneous.
12.1 Modification; Prior Claims. This Agreement sets forth
the entire understanding of the parties with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements, written or oral,
between them concerning such subject matter, including, but not limited to, all
agreements or arrangements relating to the issuance or grant of securities of
the Company to Employee, except for shares of common stock of the Company. This
Agreement may be modified only by a written instrument duly executed by each
party. Employee hereby waives any claims that may exist on the date hereof
arising from his prior employment with the Company, other than for salary
payable or reimbursement of reasonable expenses, all as incurred in the ordinary
course of business.
12.2 Assignment. The rights of the Company under this
Agreement may, without the consent of Employee, be assigned by the Company, in
its sole and unfettered discretion, to any person, firm, corporation or other
business entity which at any time, whether by purchase, merger or otherwise,
directly or indirectly, acquires all or substantially all of the assets or
business of the Company or an affiliate of the Company.
12.3 Survival. The covenants, agreements, representations
and warranties contained in or made pursuant to this Agreement shall survive
Employee's termination of employment.
12.4 Third-Party Beneficiaries. This Agreement does not
create, and shall not be construed as creating, any rights enforceable by any
person not a party to this Agreement.
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12.5 Waiver. The failure of either party hereto at any
time to enforce performance by the other party of any provision of this
Agreement shall in no way affect such party's rights thereafter to enforce the
same, nor shall the waiver by either party of any breach of any provision hereof
be deemed to be a waiver by such party of any other breach of the same or any
other provision hereof.
12.6 Hiring At Will. Any continuance of Employee's
employment by the Company after the term hereof shall be deemed a hiring at will
(unless such continuance is the subject of a new written agreement) and shall be
subject to termination with or without cause by either party upon delivery of
notice thereof.
12.7 Section Headings. The headings of the several
sections in this Agreement are inserted solely for the convenience of the
parties and are not a part of and are not intended to govern, limit or aid in
the construction of any term or provision hereof.
12.8 Notices. All notices, requests and other
communications hereunder shall be in writing and shall be delivered by courier
or other means of personal service (including by means of a nationally
recognized courier service or professional messenger service), or sent by telex
or telecopy or mailed first class, postage prepaid, by certified mail, return
receipt requested, in all cases, addressed to:
Company:
iMall, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx
With a copy to:
Loeb & Loeb LLP
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Employee:
Xxxxxxx Xxxxxxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
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All notices, requests and other communications shall be deemed given on the date
of actual receipt or delivery as evidenced by written receipt, acknowledgement
or other evidence of actual receipt or delivery to the address. In case of
service by telecopy, a copy of such notice shall be personally delivered or sent
by registered or certified mail, in the manner set forth above, within three (3)
business days thereafter. Any party hereto may from time to time by notice in
writing served as set forth above designate a different address or a different
or additional person to which all such notices or communications thereafter are
to be given.
12.9 Severability. All Sections, clauses and covenants
contained in this Agreement are severable, and in the event any of them shall be
held to be invalid by any court, this Agreement shall be interpreted as if such
invalid Sections, clauses or covenants were not contained herein.
12.10 Governing Law and Venue. This Agreement is to be
governed by and construed in accordance with the laws of the State of California
applicable to contracts made and to be performed wholly within such State, and
without regard to the conflicts of laws principles thereof. Any suit brought
hereon shall be brought in the state or federal courts sitting in Los Angeles,
California, the parties hereto hereby waiving any claim or defense that such
forum is not convenient or proper. Each party hereby agrees that any such court
shall have in personam jurisdiction over it and consents to service of process
in any manner authorized by California law.
12.11 Non-transferability of Interest. None of the rights
of Employee to receive any form of compensation payable pursuant to this
Agreement shall be assignable or transferable except through a testamentary
disposition or by the laws of descent and distribution upon the death of
Employee. Any attempted assignment, transfer, conveyance, or other disposition
(other than as aforesaid) of any interest in the rights of Employee to receive
any form of compensation to be made by the Company pursuant to this Agreement
shall be void.
12.12 Attorneys' Fees. Subject to the provisions of
Section 10 hereof with respect to arbitration, if any legal action, arbitration
or other proceeding is brought for the enforcement of this Agreement, or because
of any alleged dispute, breach, default or misrepresentation in connection with
this Agreement, the successful or prevailing party shall be entitled to recover
reasonable attorneys' fees and other costs it incurred in that action or
proceeding, in addition to any other relief to which it may be entitled.
12.13 Gender. Where the context so requires, the use of
the masculine gender shall include the feminine and/or neuter genders and the
singular shall include the plural, and vice versa, and the word "person" shall
include any corporation, firm, partnership or other form of association.
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12.14 Counterparts. This Agreement may be executed in one
(1) or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same Agreement.
12.15 Construction. The language in all parts of this
Agreement shall in all cases be construed simply, according to its fair meaning,
and not strictly for or against any of the parties hereto. Without limitation,
there shall be no presumption against any party on the ground that such party
was responsible for drafting this Agreement or any part thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date hereinabove set forth.
THE COMPANY
iMall, Inc.
By:/s/
------------------------------
Its:
--------------------------
Title:
------------------------
EMPLOYEE
/s/ Xxxxxxx Xxxxxxxxxx
---------------------------------
Xxxxxxx Xxxxxxxxxx
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EXHIBIT A
STOCK OPTION AGREEMENT
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EXHIBIT B
CALIFORNIA LABOR CODE SECTION 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.
(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.
