EXHIBIT 10.30
CONFIRMATION AGREEMENT
This Confirmation Agreement (the "Agreement") is entered into as of April 22,
2004, by and between Vitria Technology, Inc. and its subsidiaries ("Vitria"), on
the one hand, and Xx Xxx Xxxxx and Xxxx Xxxxx, on the other hand (Vitria, Xx.
Xxxxx and Xx. Xxxxx being referred to herein collectively as the "Parties" and
each individually as a "Party"); effective as of the last date signed by all of
the Parties hereto (the "Effective Date").
WHEREAS, Xx. Xxxxx currently serves as a Director on Vitria's Board of
Directors and Xx. Xxxxx serves as a Director on Vitria's Board and as Vitria's
Chief Technical Officer and acting Chief Executive Officer;
WHEREAS, Xx. Xxxxx currently serves as the Chief Executive Officer of
ChiLin, LLC, subsequently renamed QiLinSoft, LLC ("ChiLin") and Xx. Xxxxx
currently is an investor in ChiLin;
WHEREAS, on December 31, 2003, Xx. Xxxxx and Vitria entered into a written
employment agreement (attached hereto as Exhibit A) (the "CTO Agreement")
pursuant to which Xx. Xxxxx agreed that he would not be an officer, director,
employee or consultant of ChiLin and further agreed he would not have any role
with ChiLin or any related entity other than as an investor;
WHEREAS, on December 31, 2003, ChiLin and Vitria entered into a License
and Services Agreement (the "License Agreement") pursuant to which Vitria
granted ChiLin a limited license to develop, market and distribute in Greater
China a localized version of certain Vitria software products in exchange for
certain royalty payments and other consideration;
WHEREAS, on December 31, 2003, ChiLin and Vitria entered into a
Development and Services Agreement (the "Development Agreement"), pursuant to
which Vitria agreed to pay ChiLin for certain development activities involving
Vitria's software products;
WHEREAS, the Parties hereto wish to confirm the nature of Xx. Xxxxx'x and
Xx. Xxxxx'x involvement with and/or investment in ChiLin;
NOW, THEREFORE, in consideration of the promises set forth herein, the
Parties hereto agree as follows:
1. OBLIGATIONS OF XX. XXXXX AND XX. XXXXX.
(a) NONSOLICITATION. During their service on Vitria's Board of
Directors, and for one hundred eighty (180) days following the end of this
service, Xx. Xxxxx and/or Xx. Xxxxx shall not directly or indirectly solicit,
induce, or encourage, or attempt to solicit, induce, or encourage, any employee
or contractor of Vitria to end their relationship with Vitria and provide
services to any other person or entity.
(b) HIRING RESTRICTION. During their service on Vitria's Board of
Directors, and for one hundred eighty (180) days following the end of such
service, unless otherwise approved by
the Company's Chief Financial Officer, Xx. Xxxxx and/or Xx. Xxxxx shall not
directly or indirectly cause or allow the hiring, engagement, or other retention
for services by any other person or entity (including, without limitation,
ChiLin) of any individual who at the time is, or during the preceding six (6)
months was, a Vitria employee or contractor.
(c) NONCOMPETITION. During their service on Vitria's Board of Directors,
Xx. Xxxxx and/or Xx. Xxxxx shall not: (i) engage directly or indirectly in the
design, development, manufacture, promotion, sale, supply, distribution, resale,
installation, support, maintenance, repair, licensing or sublicensing of any
Competing Product (as defined herein); or (ii) engage directly or indirectly in
providing, performing, or offering any Competing Service (as defined herein).
Xx. Xxxxx and Xx. Xxxxx further agree that during their service on Vitria's
Board of Directors, they shall not become a director, officer, employee,
consultant, advisor, or contractor of any entity that engages in the activities
prohibited by Section 2(b)(iii); provided that the foregoing restrictions shall
not restrict or prohibit activities performed by ChiLin (and its successors and
assigns) pursuant to the License Agreement and Development Agreement.
(d) PURPOSE OF THESE RESTRICTIONS. Xx. Xxxxx and Xx. Xxxxx acknowledge
and agree that the promises and restrictive covenants they are providing in
Section 1 are narrowly tailored, both as to scope and time, and are reasonable
and necessary to protect the legitimate interests of Vitria, including its
interests in protecting its trade secrets and other confidential and proprietary
information. Xx. Xxxxx and Xx. Xxxxx further acknowledge and agree that the
promises and restrictive covenants provided herein do not, and will not, prevent
or restrict them in any way from engaging in any lawful profession, trade, or
business. References in Sections 1(a), 1(b) and 1(c) to "directly or indirectly"
shall include, without limitation, ChiLin and any Related Company. The terms
"Related Company" shall mean any entity that controls, is controlled by, or is
under common control with ChiLin, Xx. Xxxxx or Xx. Xxxxx, where control is
ownership of 50% or more of the voting power of the issued and outstanding stock
(or other securities or equity interests) of ChiLin or the entity in question or
the power otherwise to direct the affairs of ChiLin or the entity in question.
2. DEFINITIONS OF COMPETING PRODUCT AND COMPETING BUSINESS.
(a) COMPETING PRODUCT. As used herein, Competing Product shall mean any:
(i) business process integration software or similar product; (ii) product,
equipment, device or system that has been designed, developed, manufactured,
promoted, sold, supplied, distributed, resold, installed, supported, maintained,
repaired, licensed or sublicensed by or on behalf of Vitria at any time on or
prior to this date of this Agreement; (iii) product, equipment, device or system
that is designed, developed, manufactured, assembled, promoted, sold, supplied,
distributed, resold, installed, supported, maintained, repaired, refurbished,
licensed, sublicensed, financed, leased or subleased by or on behalf of Vitria
at any time during the time Xx. Xxxxx and Xx. Xxxxx remain as Vitria Directors;
or (iv) product, equipment, device or system that is substantially the same as,
incorporates, is a material component or part of, is based upon, is functionally
similar to or competes in any material respect with any product, equipment,
device or system of the type referred to in clause "(i)", clause "(ii)" or
clause "(iii)" of this sentence.
(b) COMPETING SERVICE. As used herein, Competing Service shall mean: (i)
any business process integration service or similar service; (ii) service that
has been provided,
performed or offered by or on behalf of Vitria at any time on or prior to the
date of this Agreement; (iii) service that is provided, performed or offered by
Vitria at any time during the Term of the License Agreement; (iv) service that
facilitates, supports or otherwise relates to the design, development,
manufacture, promotion, sale, supply, distribution, resale, installation,
support, maintenance, repair, licensing or sublicensing of any Competing
Product; or (v) service that is substantially the same as, is based upon or
competes in any material respect with any service referred to in clause "(i)",
clause "(ii)", clause "(iii)" or clause "(iv)" of this sentence.
3. AUTHORITY; SUCCESSORS AND ASSIGNS. Vitria represents and warrants that the
person executing this Agreement on behalf of Vitria has the authority to act on
Vitria's behalf and to bind Vitria to this Agreement. This Agreement may not be
assigned without the consent of each of the parties hereto; provided, that, the
provisions of this Agreement shall inure to the benefit of, and shall be binding
upon, Vitria and its successors and assigns, including any successor entity by
merger, consolidation or transfer of all or substantially all of Vitria's
assets; and Xx. Xxxxx, Xx. Xxxxx, and their personal representatives, heirs and
legatees.
4. NOTICES. Any and all notices, demands or other communications required or
desired to be given hereunder by any party shall be in writing and shall be
validly given or made to another party if delivered either personally or if
deposited in the United States mail, certified or registered, postage prepaid,
return receipt requested.
5. GOVERNING DOCUMENTS. This Agreement, including Exhibit A, shall constitute
the entire agreement and understanding of the Parties with respect to the
provisions contained herein and shall supersede all prior and contemporaneous
written or verbal agreements and understandings between the Parties relating to
such subject matter.
6. AMENDMENT. This Agreement only may be amended by a written instrument
signed by an authorized officer of Vitria (other than Xx. Xxxxx or Xx. Xxxxx),
and by Xx. Xxxxx and Xx. Xxxxx personally.
7. GOVERNING LAW. The provisions of Agreement shall be construed and
interpreted under the laws of the State of California.
8. SEVERABILITY. If an arbitrator or court of competent jurisdiction
determines that any term or provision of this Agreement is invalid or
unenforceable, in whole or in part, then the remaining terms and provisions
hereof shall be unimpaired. Such arbitrator or court will have the authority to,
and the Parties intend and desire that such arbitrator or court will, modify or
replace the invalid or unenforceable term or provision with a valid and
enforceable term or provision that most accurately embodies the Parties'
intention with respect to the invalid or unenforceable term or provision.
IN WITNESS WHEREOF, the Parties have duly authorized and caused this
Confirmation Agreement to be executed as follows:
/s/ Xx Xxx Xxxxx Date: April 22, 2004
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XX XXX XXXXX
/s/ Xxxx Xxxxx Date: April 22, 2004
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XXXX XXXXX
/s/ Xxxxx Xxxx Date: April 26, 2004
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VITRIA TECHNOLOGY, INC.
EXHIBIT A
December 28, 2003
Xx. Xxxx Xxxxx
Dear Xxxx:
I would like to confirm some matters in connection with your service as Chief
Technology Officer ("CTO") at Vitria Technology, Inc. (the "Company").
The Company is aware of your role as an investor in ChiLin LLC, a California
limited liability company ("ChiLin") with which Vitria expects to have a
business relationship. You have represented that you will not be an officer,
director, employee or consultant or have any role with ChiLin or any related
entity other than as an investor in ChinLin (the "ChinLin Role"). To the extent
that, during the course of your employment with Vitria, you anticipate any
change in the ChinLin Role you will provide Vitria's CEO or General Counsel with
prior written notification of such anticipated change. You agree that you will
have no access to, or involvement in, the Company's decisions and actions
concerning its agreements, relationship or other activities involving ChiLin,
any related entity, or any other entity for which you are an officer or
director, and that you will recuse yourself from any discussions or decisions
involving ChiLin or such other entities. In general, you will have the duties as
CTO as defined by the CEO from time to time.
Sincerely yours,
VITRIA TECHNOLOGY, INC.
By: /s/ Xxxx Xxxxxxxx
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Title: Chief Financial Officer
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AGREED:
/s/ Xxxx Xxxxx December 31, 2003
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Xxxx Xxxxx Date
