Exhibit 10.9
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of the 7th day of July 1998, by and
between Xxxx X. Xxxxxx, (the "EMPLOYEE") and TIBCO Software Inc. (the
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"EMPLOYER").
I. EMPLOYMENT
EMPLOYER employs EMPLOYEE, and EMPLOYEE accepts employment with EMPLOYER, on the
terms and conditions set forth in this Agreement.
II. TERMS OF EMPLOYMENT
The employment relationship between EMPLOYEE and EMPLOYER may be terminated as
follows:
(A) During the first ninety (90) days of employment, either party may terminate
without prior notice and for any reason whatsoever, or for no reason and
without cause; or
(B) After the first ninety (90) days of employment, either party may terminate
for any reason whatsoever, or for no reason and without cause, upon the
giving of (i) two weeks' written notice to the other party or (ii) pay
equal to two (2) weeks of EMPLOYEE's salary in lieu of such notice; or
(C) At any time, EMPLOYER may terminate EMPLOYEE without prior notice if
EMPLOYEE materially fails to perform any obligation or duty owed to
EMPLOYER.
III. DUTIES
EMPLOYEE shall perform such tasks and duties as may be assigned by EMPLOYER from
time to time. At all times EMPLOYEE shall follow all of EMPLOYER's legal
instructions and directions and shall abide by all of EMPLOYER's rules and
procedures in force from time to time while employed. EMPLOYEE shall devote his
full time, attention, skill and efforts to the tasks and duties assigned by
EMPLOYER. Without the prior written consent of EMPLOYER, EMPLOYEE shall not
provide services, for compensation, to any other person or business entity while
employed by EMPLOYER.
IV. COMPENSATION
As compensation for all services to be rendered by EMPLOYEE to EMPLOYER,
EMPLOYEE shall be paid a salary at the annual rate of $250,000.00. Said salary
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shall be payable in accordance with EMPLOYER's standard procedures. EMPLOYER
shall withhold from any amounts payable as compensation all federal, state,
municipal or other taxes as are required by any law, regulation or ruling.
(A) EMPLOYEE understands and agrees that EMPLOYEE's salary may be adjusted by
EMPLOYER prospectively, and at its sole discretion from time to time,
without affecting the remaining terms of this Agreement.
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(B) EMPLOYEE understands and agrees that any other compensation that may be
paid to EMPLOYEE for services rendered, or to be rendered, (whether by way
of any incentive payment, opportunity to acquire stock or any other form of
additional compensation) shall rest in the sole discretion of EMPLOYER.
V. PROPERTY RIGHTS; DUTY TO DISCLOSE
EMPLOYEE hereby acknowledges and agrees to be bound by the provisions of the
EMPLOYER's "Non-Disclosure/Assignment Agreement" attached hereto as Exhibit A
and made a part hereof by this reference as though set forth in full herein.
The provisions of Exhibit A shall survive any termination of this Agreement.
VI. NONSOLICITATION OF EMPLOYEES
EMPLOYEE specifically agrees that during the term of this Agreement and for a
period of one (1) year thereafter, EMPLOYEE shall not, directly or indirectly,
either for himself or for any other person, firm, corporation or other legal
entity, solicit any then employee of EMPLOYER to leave the employment of
EMPLOYER.
VII. NO ASSIGNMENT
This Agreement may not be assigned by EMPLOYEE without the written consent of
EMPLOYER. This Agreement shall be binding on the heirs, executors,
administrators, personal representatives, successors and assigns of EMPLOYEE and
EMPLOYER.
VIII. GOVERNING LAW
This Agreement shall be governed by and construed and enforced in accordance
with and subject to the laws of the State where the EMPLOYEE was principally
rendering services for EMPLOYER.
IX. NOTICES
All notices or other communications provided for by this Agreement shall be made
in writing and shall be deemed properly delivered when (i) delivered personally
or (ii) by the mailing of such notice by registered or certified mail, postage
prepaid, to the parties at the addresses set forth on the signature page of this
Agreement (or to such other address as one party designates to the other in
writing).
X. ENTIRE AGREEMENT AND WAIVER
This Agreement is the entire agreement between the parties relating to
EMPLOYEE's employment. It supersedes all prior agreements, arrangements,
negotiations and understandings related thereto. No waiver of any term,
provision or condition of this Agreement shall be deemed to be, or shall
constitute, a waiver of any other term, provision or condition herein, whether
or not similar. No such waiver shall be binding unless in writing and signed by
the waiving party.
XI. AMENDMENTS
No supplement, modification or amendment of any term, provision or condition of
this Agreement shall be binding or enforceable unless evidenced in writing
executed by the parties hereto.
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XII. 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 instrument.
XIII. REFORMATION/SEVERABILITY
If any provision of this Agreement is declared invalid by any tribunal, then
such provision shall be deemed automatically adjusted to the minimum extent
necessary to conform to the requirements for validity as declared at such time
and, as so adjusted, shall be deemed a provision of this Agreement as though
originally included herein. In the event that the provision invalidated is of
such a nature that it cannot be so adjusted, the provision shall be deemed
deleted from this Agreement as though such provision had never been included
herein. In either case, the remaining provisions of this Agreement shall remain
in effect.
After carefully reading and considering the foregoing provisions and Exhibit A,
EMPLOYEE has voluntarily signed this Agreement on as of the date first above
written.
EMPLOYER: EMPLOYEE:
TIBCO Software Inc. /s/ Xxxx X. Xxxxxx
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Name of EMPLOYER EMPLOYEE Signature
0000 Xxxxxx Xxxxx 15 Twelve Oaks Dr.
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Xxxxxxx Xxxxxxx
Xxxx Xxxx, XX 00000 Xxxxxxxxxx, XX 00000
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Xxxx, Xxxxx Xxx Xxxx, Xxxxx Zip
By: 000-000-0000 or 000-000-0000
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Telephone
Its
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EXHIBIT A
NON-DISCLOSURE/ASSIGNMENT AGREEMENT
Xxxx X. Xxxxxx ("EMPLOYEE") is employed, or is being hired, by TIBCO Software
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Inc. ("the COMPANY") and may learn, or has learned, information which the
COMPANY keeps secret from its competitors and others. As a condition of
employment or continued employment, EMPLOYEE agrees to the terms of this
Agreement.
I. PROPRIETARY INFORMATION DEFINED
The Term "Proprietary Information" means the following classes of information
relating to the COMPANY's business:
(A) Trade secrets and other proprietary and confidential information which are
owned by the COMPANY and which have to do with:
(1) the operation of the COMPANY's business, consisting, for example,
and not intending to be inclusive, of its lists or other
identifications of clients or prospective clients of the COMPANY
(and key individuals employed or engaged by such clients or
prospective clients), the nature and type of services rendered to
such clients (or proposed to be rendered to prospective clients),
fees charged or to be charged, proposals, inventions, methodologies,
algorithms, formulae, processes, compilations of information, form
and content of data bases, designs, drawings, models, equipment,
results of research proposals, job notes, reports, records,
specifications, software, firmware and procedures used in, or
related to, the COMPANY's products; and
(2) the COMPANY's relations with its employees, including without
limitation, salaries, job classifications and skill levels;
(B) Financial, sales and marketing data compiled by the COMPANY as well as the
COMPANY's financial, sales and marketing plans and strategies, customer
lists and non-public pricing;
(C) All ideas, concepts, information and written material about a client
disclosed to EMPLOYEE by the COMPANY, or acquired from a client of the
COMPANY, and all financial, accounting, statistical, personnel and business
data and plans of clients, are and shall remain the sole and exclusive
property and proprietary information of the COMPANY, or said client;
(D) Any other information designated by the COMPANY to be confidential, secret
and/or proprietary.
II. OBLIGATION TO KEEP CONFIDENTIAL
EMPLOYEE acknowledges and agrees that all Proprietary Information that comes
into EMPLOYEE's possession (including any information originated or developed by
EMPLOYEE while employed by the COMPANY) is secret and is the exclusive property
of the COMPANY. EMPLOYEE agrees to use the Proprietary Information only in
connection with EMPLOYEE's work for the COMPANY. EMPLOYEE agrees, while
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employed with the COMPANY and thereafter, to hold the Proprietary Information in
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confidence and agrees not to disclose or reveal, in any matter, any Proprietary
Information to any person or entity.
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III. RETURN OF INFORMATION
EMPLOYEE agrees, upon request of the COMPANY or upon leaving the employ of the
COMPANY, to return promptly to the COMPANY the original and all copies of any
documents, reports, notes or other materials incorporating or reflecting, in any
way, any Proprietary Information in the possession or under the control of
EMPLOYEE.
IV. INVENTION BELONGS TO THE COMPANY
EMPLOYEE acknowledges and agrees that any inventions, discoveries or
improvements which EMPLOYEE has conceived or made or may conceive or make during
EMPLOYEE's employment with the COMPANY, whether made individually or jointly
with others, which:
(1) relate or pertain to, or are in any way connected with, the systems,
products, apparatus or methods utilized, or are the subject of
research or development (actual or anticipated) by the COMPANY: or
(2) utilize equipment, supplies, facilities or Proprietary Information
belonging to the COMPANY (collectively the "Inventions") shall be
the sole exclusive property of the COMPANY and the Inventions shall
be deemed to be works for hire.
(A) EMPLOYEE agrees to make prompt and full disclosure to the COMPANY of all
inventions, discoveries or improvements made by EMPLOYEE during the term of
the Agreement, solely or jointly with others, whether or not such
invention, discovery or improvement will actually become the property of
the COMPANY pursuant to this Agreement. EMPLOYEE agrees to make such
disclosures with the understanding and the agreement of the COMPANY that,
as to any invention, discovery or improvement to which the COMPANY is not
entitled, the COMPANY and that such disclosed will be received and held
strictly in confidence by the COMPANY and that such disclosure is for the
sole purpose of determining whether or not rights to such invention,
discovery or improvement is the property of the COMPANY.
(B) To the extent EMPLOYEE would be deemed to be an owner of any of the rights
in the Invention, EMPLOYEE hereby assigns to the COMPANY all such rights in
the Inventions. EMPLOYEE hereby agrees to execute and sign any and all
applications, assignments or other instruments which the COMPANY may deem
necessary in order to enable it, at its expense, to apply for, prosecute
and obtain Letters of Patent, trademarks, copyright or other legal
protections in the United States or foreign countries for the Intentions,
or in order to assign or convey to or vest in the COMPANY the sole and
exclusive right, title and interest in and to the Inventions.
(C) The obligations contained in this Paragraph 4, except for the requirements
as to disclosure, do not apply to any rights EMPLOYEE may have acquired in
connection with an invention, discovery or improvement for which no
equipment, supplies, facility or trade secret information of the COMPANY
was used and which was developed entirely on the EMPLOYEE's own time, and
provided that such invention, discovery or improvement does not: (i) relate
directly or indirectly to the business of the COMPANY or to the COMPANY's
actual or demonstrable anticipated research or development; and (ii) result
from any work performed by EMPLOYEE for, or on behalf of, the COMPANY.
V. INJUNCTIVE RELIEF
EMPLOYEE acknowledges and agrees that, because any use or disclosure of the
COMPANY's Proprietary Information other than for the COMPANY's benefit and
without the COMPANY's prior written consent would
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cause irreparable injury to the COMPANY, in addition to any other remedies
available, will be entitled to obtain an injunction to enforce the provisions
of this Agreement.
VI. REFORMATION/SEVERABILITY
If any provision of this agreement is declared invalid by any tribunal, then
such provision shall be deemed automatically adjusted to the minimum extent
necessary to conform to the requirements for validity as declared at such time
and, as so adjusted, shall be deemed a provision of this Agreement as though
originally included herein. In the event that the provision invalidated is of
such a nature that it cannot be so adjusted, the provision shall be deemed
deleted from this Agreement as though such provision had never been included
herein. In either case, the remaining provisions of this Agreement shall remain
in effect.
NOTE: POLICY STATEMENT AGAINST THE USE OF TRADE SECRETS OF OTHERS.
It is the practice and policy of COMPANY not to use the trade secrets of others.
Thus, EMPLOYEE should not use any information which any prior employer
identified specifically as a trade secret or as Proprietary Information.
However, EMPLOYEE is not required to maintain the confidentiality of any
information which is:
(1) known to EMPLOYEE prior to the disclosure by the prior employer; or
(2) known, or becomes known, to third parties knowledgeable in the
industry without the fault or negligence of EMPLOYEE; or
(3) subsequently rightly received from a third party without restrictions
regarding the secrecy or confidentiality; or
(4) independently developed by EMPLOYEE or by EMPLOYEE without recourse
to the "trade secret" of another; or
(5) furnished by a prior employer to a third party without restriction
or obligation to maintain the secrecy or the confidentiality of such
information; or
(6) approved for release by the owner of the "trade secret" information.
I acknowledge that I have read and understood the above terms and conditions and
agree to be bound thereby. In addition, I acknowledge a receipt of a copy of
this Agreement.
Date: July 7, 1998
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Signature: /s/ Xxxx X. Xxxxxx
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Name (printed): Xxxx X. Xxxxxx
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Mailing Address: 00 Xxxxxx Xxxx Xxxxx, Xxxxxxxxxx, XX 00000
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Phone Number: 000-000-0000 or 000-000-0000
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