EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
effective as of January 1, 2001 (the "Effective Date"), by and between PREVIO,
INC., a California corporation (the "Company"), and Xxxxx X. Xxxxx (the
"Executive"). The Company and the Executive are hereinafter collectively
referred to as the "Parties", and individually referred to as a "Party".
RECITALS
A. The Company desires assurance of the association and services of the
Executive in order to retain the Executive's experience, skills, abilities,
background and knowledge, and is willing to engage the Executive's services on
the terms and conditions set forth in this Agreement.
B. The Executive desires to be in the employ of the Company, and is
willing to accept such employment on the terms and conditions set forth in this
Agreement.
Agreement
In consideration of the foregoing Recitals and the mutual promises and
covenants herein contained, and for other good and valuable consideration, the
Parties, intending to be legally bound, agree as follows:
3. EMPLOYMENT.
3.1 TERM. The Company hereby employs Executive, and Executive hereby
accepts employment by the Company, upon the terms and conditions
set forth in this Agreement, for the term commencing the Effective
Date and ending on the one-year anniversary of the Effective Date
(the "Term"). Upon the first anniversary date of the Effective Date
of this Agreement and on each subsequent anniversary date
thereafter, the Term shall automatically be extended by one (1)
year unless this Agreement is terminated pursuant to Sections 4 or
5 herein.
3.2 TITLE. The Executive shall have the title of Vice-President,
Product Development of the Company and shall serve in such other
capacity or capacities as the Chief Executive Officer ("CEO") or
Board of Directors of the Company may from time to time prescribe.
The Executive shall report to the Company's CEO.
3.3 DUTIES. The Executive shall do and perform all services, acts or
things necessary or advisable to manage and conduct the business of
the Company and which are normally associated with the position of
Vice-President, Product Development, consistent with the bylaws of
the Company and as required by the CEO and or the Company's Board
of Directors, and which can reasonably be accomplished by
application of Executive's full business energies.
3.4 POLICIES AND PRACTICES. The employment relationship between the
Parties shall be governed by the reasonable policies and practices
established by the Company, its Board of Directors, and CEO. The
Executive will acknowledge in writing that he has read the
Company's Employee Handbook, which will govern the terms and
conditions of his employment with the Company, along with this
Agreement. In the event that the terms of this Agreement differ
from or are in conflict with the Company's policies or practices or
the Company's Employee Handbook, this Agreement shall control.
3.5 LOCATION. Unless the Parties otherwise agree in writing, during the
term of this Agreement, the Executive shall perform the services
Executive is required to perform pursuant to this Agreement at the
Company's offices, located in San Diego, or at any other place at
which the Company maintains an office; provided, however, that the
Company may from time to time require the Executive to travel
temporarily to other locations in connection with the Company's
business.
4. LOYAL AND CONSCIENTIOUS PERFORMANCE; NONCOMPETITION.
4.1 LOYALTY. During the Executive's employment by the Company, the
Executive shall devote Executive's full business energies,
interest, abilities and productive time to the proper and efficient
performance of Executive's duties under this Agreement.
4.2 COVENANT NOT TO COMPETE. Except with the prior written consent of
the Company's Board of Directors and CEO, the Executive will not,
during the Term of this Agreement, and any period during which the
Executive is receiving compensation or any other consideration from
the Company, including severance pay pursuant to Section 4.4.3
herein, engage in competition with the Company or any of its
affiliates, either directly or indirectly, in any manner or
capacity, as adviser, principal, agent, affiliate, promoter,
partner, officer, director, employee, stockholder, owner, co-owner,
consultant, or member of any association or otherwise, in any phase
of the business of developing, manufacturing and marketing of
products or services which are in the same field of use or which
otherwise compete with the products or services or proposed
products or services of the Company or any of its affiliates.
4.3 AGREEMENT NOT TO PARTICIPATE IN COMPANY'S COMPETITORS. During the
Term of this Agreement, the Executive agrees not to acquire, assume
or participate in, directly or indirectly, any position, investment
or interest known by Executive to be adverse or antagonistic to the
Company, its business or prospects, financial or otherwise or in
any company, person or entity that is, directly or indirectly, in
competition with the business of the Company or any of its
affiliates. Ownership by the Executive, as a passive investment, of
less than two percent (2%) of the outstanding shares of capital
stock of any corporation with one or more classes of its capital
stock listed on a national securities exchange or publicly traded
on the NASDAQ Stock Market or in the over-the-counter market shall
not constitute a breach of this paragraph.
5. COMPENSATION OF THE EXECUTIVE.
5.1 BASE SALARY. The Company shall pay the Executive a base salary of
two hundred thousand Dollars ($200,000) per year, less payroll
deductions and all required withholdings payable in regular
periodic payments in accordance with Company policy. Such Base
Salary shall be prorated for any partial year of employment on the
basis of a 365-day fiscal year.
5.2 BONUS. In addition to the base Salary provided in Section 3.1
above, Executive shall be eligible to receive a quarterly bonus
(the "Bonus'), in an amount up to forty percent (40%) of base
salary. In addition, the Executive will be further eligible for a
quarterly over-achievement bonus (the "Over-achievement Bonus") of
up to ten percent (10%) of base salary. Conditions for earning both
the Bonus and the Over-achievement Bonus will be agreed upon in
writing by the Board and the Executive for each fiscal quarter.
5.3 STOCK OPTIONS. Upon the Effective Date of this Agreement and
subject to approval of the Company's Board of Directors, Executive
will be granted a Stock Option under the Company's 1992 Stock
Option Plan to purchase eighty-thousand (80,000) shares of the
Company's Common Stock (the "Option"). To the extent practical as
determined by the Company's Board of Directors, the Options shall
be an Incentive Stock Option as such term is defined in Section 422
of the Internal Revenue Code of 1986, as amended. The Option will
be governed by and granted pursuant to a separate Stock Option
Agreement, which will provide for the ability to exercise such
Option for a period up to one (1) year subsequent to the
Executive's termination ("Option Tail"). In no case shall the
Option Tail serve to extend the term of the Option as specified by
the separate Stock Option Agreement. Executive understands that the
Option will be treated as an Incentive Stock Option only to the
extent permissible under the law and agrees to assume
responsibility for and indemnify the Company against all tax
liability incurred by the Executive as a result of his exercise of
the Options. The exercise price per share of the Option will be
equal to the fair market value of the common stock established on
the date this Agreement (and Option) is approved by the Board of
Directors. The Option will be subject to vesting over three (3)
years so long as Executive continues to be employed with the
Company, according to the following schedule: 20,024 shares subject
to the Option will vest on January 1, 2001 and 1,666 shares subject
to the Option will vest at the end of each monthly period
thereafter for a period of three (3) years.
5.4 CHANGES TO COMPENSATION. The Executive's compensation may be
changed from time to time by mutual agreement of the Executive and
the Company.
5.5 EMPLOYMENT TAXES. All of the Executive's compensation shall be
subject to customary withholding taxes and any other employment
taxes as are commonly required to be collected or withheld by the
Company.
5.6 BENEFITS. The Executive shall, in accordance with Company policy
and the terms of the applicable plan documents, be eligible to
participate in benefits under any executive benefit plan or
arrangement which may be in effect from time to time and made
available to the Company's executive or key management employees.
6. TERMINATION.
6.1 TERMINATION BY THE COMPANY. The Executive's employment with the
Company may be terminated under the following conditions:
6.1.1 DEATH OR DISABILITY. The Executive's employment with the Company
shall terminate effective upon the date of the Executive's death or
"Complete Disability" (as defined in Section 4.5.1).
6.1.2 FOR CAUSE. The Company may terminate the Executive's employment
under this Agreement for "Cause" (as defined in Section 4.5.3) by
delivery of written notice to the Executive specifying the Cause or
Causes relied upon for such termination. Any notice of termination
given pursuant to this Section 4.1.2 shall effect termination as of
the date specified in such notice or, in the event no such date is
specified, on the last day of the month in which such notice is
delivered or deemed delivered as provided in Section 9 below.
6.1.3 WITHOUT CAUSE. The Company may terminate the Executive's
employment under this Agreement at any time and for any reason by
delivery of written notice of such termination to the Executive.
Any notice of termination given pursuant to this Section 4.1.3
shall effect termination as of the date specified in such notice
or, in the event no such date is specified, on the last day of the
month in which such notice is delivered or deemed delivered as
provided in Section 9 below.
6.2 TERMINATION BY THE EXECUTIVE. The Executive may terminate the
Executive's employment with the Company under the following
conditions:
6.2.1 GOOD REASON. The Executive may terminate the Executive's
employment under this Agreement for "Good Reason" (as defined below
in Section 4.5.2) by delivery of written notice to the Company
specifying the "Good Reason" relied upon by the Executive for such
termination, provided that such notice is delivered within six (6)
months following the occurrence of any event or events constituting
Good Reason and that Executive has given the Company a minimum of
thirty (30) days written notice and an opportunity to cure the
event which constitutes "Good Reason."
6.2.2 WITHOUT GOOD REASON. The Executive may terminate the Executive's
employment hereunder for other than "Good Reason" upon sixty (60)
days written notice to the Company.
6.3 TERMINATION BY MUTUAL AGREEMENT OF THE PARTIES. The Executive's
employment pursuant to this Agreement may be terminated at any time
upon a mutual agreement in writing of the Parties. Any such
termination of employment shall have the consequences specified in
such agreement.
6.4 COMPENSATION UPON TERMINATION.
6.4.1 DEATH OR COMPLETE DISABILITY. If the Executive's employment shall
be terminated by death or Complete Disability as provided in
Section 4.5.1, the Company shall pay the Executive's accrued Base
Salary and accrued and unused vacation benefits earned through the
date of termination at the rate in effect at the time of
termination to Executive and/or Executive's heirs, and the Company
shall thereafter have no further obligations to the Executive
and/or Executive's heirs under this Agreement.
6.4.2 CAUSE OR WITHOUT GOOD REASON. If the Executive's employment shall
be terminated by the Company for Cause or if the Executive
terminates employment hereunder without Good Reason, the Company
shall pay the Executive's accrued base salary and accrued and
unused vacation benefits earned through the date of termination at
the rate in effect at the time of the notice of termination to
Executive, and the Company shall thereafter have no further
obligations to the Executive under this Agreement.
6.4.3 WITHOUT CAUSE OR GOOD REASON. If the Company terminates the
Executive's employment without Cause or the Executive resigns with
Good Reason, the Executive shall be entitled to the Executive's
base salary and accrued and unused vacation earned through the date
of termination, subject to standard deductions and withholdings. In
addition, upon the Executive's furnishing to the Company an
executed waiver and release of claims (the form of which is
attached hereto as Exhibit A), the Executive shall be entitled to
fifty percent (50%) of the equivalent of the Executive's highest
annual base salary under this Agreement or as subsequently agreed,
to be paid ratably, no less frequently than monthly, over a period
of six (6) months after the date of termination.
6.4.4 COVENANT NOT TO COMPETE. Notwithstanding any provisions in this
Agreement to the contrary, including any provisions contained in
this Section 4.4, the Company's obligations, and the Executive's
rights, pursuant to Section 4.4.3 shall cease and be rendered a
nullity immediately should the Executive violate the provision of
Section 2.2 herein, or should the Executive violate the terms and
conditions of the Executive's Proprietary Information and
Inventions Agreement.
6.4.5 TERMINATION OF OBLIGATIONS. In the event of the termination of
the Executive's employment hereunder and pursuant to this Section
4, the Company shall have no obligation to pay Executive any Base
Salary, bonus or other compensation or benefits, except as provided
in this Section 4 or for benefits due to the Executive (and/or the
Executive's dependents under the terms of the Company's benefit
plans). The Company may offset any amounts Executive owes it or its
subsidiaries against any amount it owes Executive pursuant to this
Section 4.4.
6.5 DEFINITIONS. For purposes of this Agreement, the following terms
shall have the following meanings:
6.5.1 COMPLETE DISABILITY. "Complete Disability" shall mean the
inability of the Executive to perform the Executive's duties under
this Agreement because the Executive has become permanently
disabled within the meaning of any policy of disability income
insurance covering employees of the Company then in force. In the
event the Company has no policy of disability income insurance
covering employees of the Company in force when the Executive
becomes disabled, the term "Complete Disability" shall mean the
inability of the Executive to perform the Executive's duties under
this Agreement by reason of any incapacity, physical or mental,
which the Board, based upon medical advice or an opinion provided
by a licensed physician acceptable to the Board, determines to have
incapacitated the Executive from satisfactorily performing all of
the Executive'S usual services for the Company for a period of at
least one hundred twenty (120) days during any twelve (12) month
period (whether or not consecutive). Based upon such medical advice
or opinion, the determination of the Board shall be final and
binding and the date such determination is made shall be the date
of such Complete Disability for purposes of this Agreement.
6.5.2 GOOD REASON. "Good Reason" for the Executive to terminate the
Executive's employment hereunder shall mean the occurrence of any
of the following events without the Executive's consent:
(i) a substantial diminution in the nature, status or prestige
of the Executive's responsibilities, title or reporting level as
they exist on the Effective Date of this Agreement;
(ii) the relocation of the Company's executive offices or
principal business location to a point that increases Executive's
commute by more than thirty (30) miles;
(iii) a reduction by the Company of the Executive's base Salary as
initially set forth herein or as the same may be increased from
time to time;
(iv) any action by the Company (including the elimination of
benefit plans without providing substitutes thereof or the
reduction of the Executive's benefits thereunder) that would
substantially diminish the aggregate value of the Executive's
fringe benefits as they exist at such time; or
(v) a failure by the Company to obtain from any successor
company, before the succession takes place, an agreement to assume
and perform all of the terms and conditions of this Agreement.
6.5.3 FOR CAUSE. "Cause" for the Company to terminate Executive's
employment hereunder shall mean the occurrence of any of the
following events:
(i) has committed an act of extreme negligence that materially
injures the business of the Company;
(ii) has refused or failed to follow lawful and reasonable
directions of the Board;
(iii) has been convicted of a felony involving moral turpitude
that is likely to inflict or has inflicted material injury on the
business of the Company;
(iv) the Executive's engaging or in any manner participating in
any activity which is directly competitive with or intentionally
injurious to the Company or any of its affiliates or which violates
any material provisions of Section 7 hereof; or
(v) the Executive's commission of any fraud against the Company,
its affiliates, employees, agents or customers.
6.6 SURVIVAL OF CERTAIN Sections. Sections 2.2, 4.4.3, 4.4.4, 5, 6, 7,
10, 18, 19, 20 and 21 of this Agreement will survive the
termination of this Agreement.
7. CHANGE OF CONTROL.
7.1 In the event that Executive's employment as Vice President, Product
Development with the Company or resultant entity is terminated
without Cause or for Good Reason within two (2) months prior to or
thirteen (13) months following a Change of Control (as defined
below) of the Company, then upon the Executive's delivery to the
Company of an effective Release and Waiver in the form attached
hereto as Exhibit A, the Executive shall be entitled to accelerated
vesting of fifty percent (50%) of the remaining unvested shares
subject to the Option, such that fifty percent (50%) of the
remaining unvested shares subject to the Option will be vested and
fully exercisable as of the date of Executive' termination as Vice
President, Product Development. In the event the Company's common
stock is priced at equal to or greater than fifteen dollars ($15)
per share (or as appropriately and proportionately adjusted in the
event of stock-splits or reverse stock-splits, collectively
referred to as "Stock-Splits") on the effective date of the Change
of Control, or the structure of the Change in Control transaction
results in a valuation of the Company's common stock at a price
equal to or greater than fifteen dollars ($15) per share (or as
adjusted for Stock-Splits), the Executive shall be entitled to
accelerated vesting of one hundred percent (100%) of the unvested
shares subject to the Option. Change in Control means: (i) a sale
or other disposition of all or substantially all of the assets of
the Company; (ii) a merger or consolidation in which the Company is
not the surviving entity and in which the stockholders of the
Company immediately prior to such consolidation or merger own less
than fifty percent (50%) of the surviving entity's voting power
immediately after the transaction;
(iii) a reverse merger in which the Company is the surviving entity
but the shares of Common Stock outstanding immediately preceding
the merger are converted by virtue of the merger into other
property, whether in the form of securities, cash or otherwise, and
in which the stockholders of the Company immediately prior to such
reverse merger own less than fifty percent (50%) of the Company's
voting power immediately after the transaction; (iv) an acquisition
by any person, entity or group within the meaning of Section 13(d)
or 14(d) of the Exchange Act, or any comparable successor
provisions (excluding any employee benefit plan, or related trust,
sponsored or maintained by the Company or subsidiary of the Company
or other entity controlled by the Company) of the beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act, or comparable successor rule) of securities of the
Company representing at least fifty percent (50%) of the voting
power entitled to vote in the election of Directors; or (v) in the
event that the individuals who, as of the date of adoption of the
Plan, are members of the Company's Board (the "Incumbent Board"),
cease for any reason to constitute at least fifty percent (50%) of
the Board. If the election, or nomination for election by the
Company's stockholders, of any new Director is approved by a vote
of at least fifty percent (50%) of the Incumbent Board, such new
Director shall be considered to be a member of the Incumbent Board
in the future.
7.2 In the event that any payment received or to be received by the
Executive pursuant to this Agreement ("Payment") would (i)
constitute a "parachute payment" within the meaning of Section 280G
of the Internal Revenue Code of 1986, as amended (the "Code") and
(ii) but for this Section 5.2, be subject to the excise tax imposed
by Section 4999 of the Code (the "Excise Tax"), then, subject to
the provisions of Section 5.3 hereof, such Payment shall be reduced
to the largest amount which the Executive, in Executive's
discretion, determines would result in no portion of the Payment
being subject to the Excise Tax. The determination by the Executive
of any required reduction pursuant to this Section 5.2 shall be
conclusive and binding upon the Company. The Company shall reduce a
Payment in accordance with this Section 5.2 only upon written
notice by the Executive indicating the amount of such reduction, if
any. If the Internal Revenue Service (the "IRS") determines that a
Payment is subject to the Excise Tax, then Section 5.3 hereof shall
apply, and the enforcement of Section 5.3 shall be the exclusive
remedy to the Company for a failure by the Executive to reduce the
Payment so that no portion thereof is subject to the Excise Tax.
7.3 If, notwithstanding any reduction described in Section 5.2 hereof
(or in the absence of any such reduction), the IRS determines that
the Executive is liable for the Excise Tax as a result of the
receipt of a Payment, then the Executive shall be obligated to pay
back to the Company, within thirty (30) days after final IRS
determination, an amount of the Payment equal to the "Repayment
Amount". The Repayment Amount with respect to a Payment shall be
the smallest such amount, if any, as shall be required to be paid
to the Company so that the Executive's net proceeds with respect to
any Payment (after taking into account the payment of the Excise
Tax imposed on such Payment) shall be maximized. Notwithstanding
the foregoing, the Repayment Amount with respect to a Payment shall
be zero if a Repayment Amount of more than zero would not eliminate
the Excise Tax imposed on such Payment. If the Excise Tax is not
eliminated pursuant to this Section 5.3, the Executive shall pay
the Excise Tax.
8. SUCCESSORS.
Provided that Executive remains employed by the Company until a
Change in Control occurs, the Company agrees to require any successor company
("Successor Company") to assume the obligations in Section 5.1 of this
Agreement. Such assumption shall be by an express agreement, signed by both the
successor and Executive, and shall be satisfactory to Executive. To facilitate
obtaining the assumption from a potential successor, the Company agrees to
contribute up to one-half of any liability that the Successor Company may incur
to Executive pursuant to Section 5.1 of this Agreement. Company's failure to
obtain such an express assumption shall be a breach of this Agreement and shall
entitle Executive to the same benefits and compensation as Executive would be
entitled to if Executive had terminated Executive's employment for Good Reason
before the occurrence of the change in Control.
9. CONFIDENTIAL AND PROPRIETARY INFORMATION; NONSOLICITATION.
9.1 The Executive agrees to execute and abide by the Proprietary
Information and Inventions Agreement attached hereto as Exhibit B.
9.2 The Executive recognizes that Executive's employment with the
Company will involve contact with information of substantial value
to the Company, which is not old and generally known in the trade,
and which gives the Company an advantage over its competitors who
do not know or use it, including but not limited to, techniques,
designs, drawings, processes, inventions know how, strategies,
marketing, and/or advertising plans or arrangements, developments,
equipment, prototypes, sales, supplier, service provider, vendor,
distributor and customer information, and business and financial
information relating to the business, products, services, practices
and techniques of the Company, (hereinafter referred to as
"Confidential and Proprietary Information"). The Executive will at
all times regard and preserve as confidential such Confidential and
Proprietary Information obtained by the Executive from whatever
source and will not, either during Executive's employment with the
Company or for a period of ten years thereafter, publish or
disclose any part of such Confidential and Proprietary Information
in any manner at any time, or use the same except on behalf of the
Company, without the prior written consent of the Company.
9.3 While employed by the Company and for one (1) year thereafter, the
Executive agrees that in order to protect the Company's
Confidential and Proprietary Information from unauthorized use,
that the Executive will not, either directly or through others,
solicit or attempt to solicit any employee, consultant or
independent contractor of the Company to terminate his or her
relationship with the Company in order to become an employee,
consultant or independent contractor to or for any other person or
business entity; or the business of any customer, supplier, service
provider, vendor or distributor of the Company which, at the time
of termination or one (1) year immediately prior thereto, was doing
business with the Company or listed on Company's customer,
supplier, service provider, vendor or distributor list.
10. ASSIGNMENT AND BINDING EFFECT.
This Agreement shall be binding upon and inure to the benefit of
the Executive and the Executive's heirs, executors, personal representatives,
assigns, administrators and legal representatives. Because of the unique and
personal nature of the Executive's duties under this Agreement, neither this
Agreement nor any rights or obligations under this Agreement shall be assignable
by the Executive. This Agreement shall be binding upon and inure to the benefit
of the Company and its successors, assigns and legal representatives.
11. NOTICES.
All notices or demands of any kind required or permitted to be
given by the Company or the Executive under this Agreement shall be given in
writing and shall be personally delivered (and receipted for), faxed during
normal business hours or mailed by certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Company:
PREVIO, INC.
00000 XXXX XXXXX XXXXX
XXX XXXXX, XX 00000
ATTENTION CHIEF EXECUTIVE OFFICER
AND
PREVIO, INC.
00000 XXXX XXXXX XXXXX
XXX XXXXX, XX 00000
ATTENTION CHIEF FINANCIAL OFFICER
If to the Executive:
XXXXX X. XXXXX
0000 XXXXXX XXXX XXXXX
XXXXXXXXX, XX. 00000
Any such written notice shall be deemed received when personally delivered or
three (3) days after its deposit in the United States mail as specified above.
Either Party may change its address for notices by giving notice to the other
Party in the manner specified in this section.
12. CHOICE OF LAW.
This Agreement is made in San Diego, California. This Agreement
shall be construed and interpreted in accordance with the laws of the State of
California.
13. INTEGRATION.
This Agreement contains the complete, final and exclusive agreement
of the Parties relating to the terms and conditions of the Executive's
employment, and supersedes all prior and contemporaneous oral and written
employment agreements or arrangements between the Parties.
14. AMENDMENT.
This Agreement cannot be amended or modified except by a written
agreement signed by the Executive and the Company.
15. WAIVER.
No term, covenant or condition of this Agreement or any breach
thereof shall be deemed waived, except with the written consent of the Party
against whom the wavier is claimed, and any waiver or any such term, covenant,
condition or breach shall not be deemed to be a waiver of any preceding or
succeeding breach of the same or any other term, covenant, condition or breach.
16. SEVERABILITY.
The finding by a court of competent jurisdiction of the
unenforceability, invalidity or illegality of any provision of this Agreement
shall not render any other provision of this Agreement unenforceable, invalid or
illegal. Such court shall have the authority to modify or replace the invalid or
unenforceable term or provision with a valid and enforceable term or provision
which most accurately represents the Parties' intention with respect to the
invalid or unenforceable term or provision.
17. INTERPRETATION; CONSTRUCTION.
The headings set forth in this Agreement are for convenience of
reference only and shall not be used in interpreting this Agreement. This
Agreement has been drafted by legal counsel representing the Company, but the
Executive has been encouraged, and has consulted with, Executive's own
independent counsel and tax advisors with respect to the terms of this
Agreement. The Parties acknowledge that each Party and its counsel has reviewed
and revised, or had an opportunity to review and revise, this Agreement, and the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Agreement.
18. REPRESENTATIONS AND WARRANTIES.
The Executive represents and warrants that Executive is not
restricted or prohibited, contractually or otherwise, from entering into and
performing each of the terms and covenants contained in this Agreement, and that
Executive's execution and performance of this Agreement will not violate or
breach any other agreements between the Executive and any other person or
entity.
19. COUNTERPARTS.
This Agreement may be executed in two counterparts, each of which
shall be deemed an original, all of which together shall contribute one and the
same instrument.
20. ARBITRATION.
To ensure rapid and economical resolution of any disputes which may
arise under this Agreement, the Executive and the Company agree that any and all
disputes or controversies of any nature whatsoever, arising from or regarding
the interpretation, performance, enforcement or breach of this Agreement shall
be resolved by confidential, final and binding arbitration (rather than trial by
jury or court or resolution in some other forum) to the fullest extent permitted
by law. Any arbitration proceeding pursuant to this Agreement shall be conducted
by the American Arbitration Association ("AAA") in San Diego under the then
existing employment-related AAA arbitration rules. If for any reason all or part
of this arbitration provision is held to be invalid, illegal, or unenforceable
in any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other portion of
this arbitration provision or any other jurisdiction, but this provision will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable part or parts of this provision had never been
contained herein, consistent with the general intent of the Parties insofar as
possible.
I HAVE READ SECTION 18 AND IRREVOCABLY AGREE TO ARBITRATE ANY DISPUTE IDENTIFIED
ABOVE.
______ (EXECUTIVE'S INITIALS)
21. INJUNCTIVE RELIEF.
The Executive is obligated under this Agreement to render services
and comply with covenants of a special, unique, unusual and extraordinary
character, thereby giving this Agreement peculiar value, so that the loss of
such service or violation by the Executive of this Agreement, including, but not
limited to, the Proprietary Information and Inventions Agreement, could not
reasonably or adequately be compensated in damages in an action at law.
Therefore, notwithstanding Section 18 herein, in addition to any other remedies
or sanctions provided by law, whether criminal or civil, and without limiting
the right of the Company and successors or assigns to pursue all other legal and
equitable rights available to them, the Company shall have the right during the
Executive's employment hereunder (or thereafter with respect to obligations
continuing after the termination of this Agreement) to compel specific
performance hereof by the Executive or to obtain temporary and permanent
injunctive relief against violations hereof by the Executive, including, but not
limited to violations of the Proprietary Information and Inventions Agreement,
and, in furtherance thereof, to apply to any court with jurisdiction over the
Parties to enforce the provisions hereof.
22. TRADE SECRETS OF OTHERS.
It is the understanding of both the Company and the Executive that
the Executive shall not divulge to the Company and/or its subsidiaries any
confidential information or trade secrets belonging to others, including the
Executive's former employers, nor shall the Company and/or its affiliates seek
to elicit from the Executive any such information. Consistent with the
foregoing, the Executive shall not provide to the Company and/or its affiliates,
and the Company and/or its affiliates shall not request, any documents or copies
of documents containing such information.
23. ADVERTISING WAIVER.
The Executive agrees to permit the Company and/or its affiliates,
and persons or other organizations authorized by the Company and/or its
affiliates, to use, publish and distribute advertising or sales promotional
literature concerning the products and/or services of the Company and/or its
affiliates, or the machinery and equipment used in the provision thereof, in
which the Executive's name and/or pictures of the Executive taken in the course
of the Executive's provision of services to the Company and/or its affiliates,
appear. The Executive hereby waives and releases any claim or right the
Executive may otherwise have arising out of such use, publication or
distribution.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
PREVIO, INC.
By: /s/ Xxx Xxxxxxxx
----------------------------------------
Its: CEO
---------------------------------------
Dated: 1/8/01
-------------------------------------
EXECUTIVE:
/s/ Xxxxx X. Xxxxx
--------------------------------------------
XXXXX X. XXXXX
Dated: 1/8/01
-------------------------------------
TABLE OF CONTENTS
PAGE
1. Employment................................................................1
2. Loyal And Conscientious Performance; Noncompetition.......................2
3. Compensation Of The Executive.............................................3
4. Termination...............................................................4
5. Change Of Control.........................................................7
6. Successors................................................................8
7. Confidential And Proprietary Information; Nonsolicitation.................9
8. Assignment And Binding Effect.............................................9
9. Notices...................................................................9
10. Choice Of Law............................................................10
11. Integration..............................................................10
12. Amendment................................................................10
13. Waiver...................................................................10
14. Severability.............................................................10
15. Interpretation; Construction.............................................11
16. Representations And Warranties...........................................11
17. Counterparts.............................................................11
18. Arbitration..............................................................11
19. Injunctive Relief........................................................12
20. Trade Secrets Of Others..................................................12
21. Advertising Waiver.......................................................12
i.
EMPLOYMENT AGREEMENT
BY AND BETWEEN
PREVIO, INC.
AND
XXXXX X. XXXXX
EXHIBIT A
RELEASE AND WAIVER OF CLAIMS
In consideration of the payments and other benefits set forth in
Section __ of the Employment Agreement dated ___________, to which this form is
attached, I, Xxxxx X. Xxxxx, hereby furnish PREVIO, INC. (the "Company"), with
the following release and waiver ("Release and Waiver").
I hereby release, and forever discharge the Company, its officers,
directors, agents, employees, stockholders, successors, assigns, affiliates,
parent, subsidiaries, and benefit plans, of and from any and all claims,
liabilities, demands, causes of action, costs, expenses, attorneys' fees,
damages, indemnities and obligations of every kind and nature, in law, equity,
or otherwise, known and unknown, suspected and unsuspected, disclosed and
undisclosed, arising at any time prior to and including my employment
termination date with respect to any claims relating to my employment and the
termination of my employment, including but not limited to, claims pursuant to
any federal, state or local law relating to employment, including, but not
limited to, discrimination claims, claims under the California Fair Employment
and Housing Act, and the Federal Age Discrimination in Employment Act of 1967,
as amended ("ADEA"), or claims for wrongful termination, breach of the covenant
of good faith, contract claims, tort claims, and wage or benefit claims,
including but not limited to, claims for salary, bonuses, commissions, stock,
stock options, vacation pay, fringe benefits, or any form of compensation except
for severance pay as enumerated in the Employment Agreement between Company and
Executive dated November xx, 2000.
I also acknowledge that I have read and understand Section 1542 of the
California Civil Code, which reads as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with the
debtor."
I hereby expressly waive and relinquish all rights and benefits under
that section and any law of any jurisdiction of similar effect with respect to
any claims I may have against the Company.
I acknowledge that, among other rights, I am waiving and releasing any
rights I may have under ADEA, that this Release and Waiver is knowing and
voluntary, and that the consideration given for this Release and Waiver is in
addition to anything of value to which I was already entitled as an executive of
the Company. I further acknowledge that I have been advised, as required by the
Older Workers Benefit Protection Act, that: (a) the Release and Waiver granted
herein does not relate to claims which may arise after this Release and Waiver
is executed; (b) I have the right to consult with an attorney prior to executing
this Release and Waiver (although I may choose voluntarily not to do so); and if
I am over 40 years of age upon execution of this Release and Waiver: (c) I have
twenty-one (21) days from the date of termination of my employment with the
Company in which to consider this Release and Waiver (although I may choose
voluntarily to execute this Release and Waiver earlier); (d) I have seven (7)
days following the execution of this Release and Waiver to revoke my consent to
this Release and Waiver; and (e) this Release and Waiver shall not be effective
until the seven (7) day revocation period has expired.
Date: By: /s/ Xxxxx X. Xxxxx
----------------------- -------------------------------
XXXXX X. XXXXX
EXHIBIT B
PREVIO, INC.
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
In consideration of my employment or continued employment by PREVIO,
INC. (the "Company"), and the compensation now and hereafter paid to me, I,
XXXXX X. XXXXX, hereby agree as follows:
1. NONDISCLOSURE
1.1 RECOGNITION OF COMPANY'S RIGHTS; NONDISCLOSURE. At all times during
my employment and thereafter, I will hold in strictest confidence and will not
disclose, use, lecture upon or publish any of the Company's Proprietary
Information (defined below), except as such disclosure, use or publication may
be required in connection with my work for the Company, or unless an officer of
the Company expressly authorizes such in writing. I will obtain Company's
written approval before publishing or submitting for publication any material
(written, verbal, or otherwise) that relates to my work at Company and/or
incorporates any Proprietary Information. I hereby assign to the Company any
rights I may have or acquire in such Proprietary Information and recognize that
all Proprietary Information shall be the sole property of the Company and its
assigns.
1.2 PROPRIETARY INFORMATION. The term "PROPRIETARY INFORMATION" shall
mean any and all confidential and/or proprietary knowledge, data or information
of the Company. By way of illustration but not limitation, "Proprietary
Information" includes (a) trade secrets, inventions, mask works, ideas,
processes, formulas, source and object codes, data, programs, other works of
authorship, know-how, improvements, discoveries, developments, designs and
techniques (hereinafter collectively referred to as "Inventions"); and (b)
information regarding plans for research, development, new products, marketing
and selling, business plans, budgets and unpublished financial statements,
licenses, prices and costs, suppliers and customers; and (c) information
regarding the skills and compensation of other employees of the Company.
Notwithstanding the foregoing, it is understood that, at all such times, I am
free to use information which is generally known in the trade or industry, which
is not gained as result of a breach of this Agreement, and my own, skill,
knowledge, know-how and experience to whatever extent and in whichever way I
wish.
1.3 THIRD PARTY INFORMATION. I understand, in addition, that the
Company has received and in the future will receive from third parties
confidential or proprietary information ("Third Party Information") 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. During the term of my
employment and thereafter, I will hold Third Party Information in the strictest
confidence and will not disclose to anyone (other than Company personnel who
need to know such information in connection with their work for the Company) or
use, except in connection with my work for the Company, Third Party Information
unless expressly authorized by an officer of the Company in writing.
1.4 NO IMPROPER USE OF INFORMATION OF PRIOR EMPLOYERS AND OTHERS.
During my employment by the Company I will not improperly use or disclose any
confidential information or trade secrets, if any, of any former employer or any
other person to whom I have an obligation of confidentiality, and I will not
bring onto the premises of the Company any unpublished documents or any property
belonging to any former employer or any other person to whom I have an
obligation of confidentiality unless consented to in writing by that former
employer or person. I will use in the performance of my duties only information
which is generally known and used by persons with training and experience
comparable to my own, which is common knowledge in the industry or otherwise
legally in the public domain, or which is otherwise provided or developed by the
Company.
2. ASSIGNMENT OF INVENTIONS.
2.1 PROPRIETARY RIGHTS. The term "Proprietary Rights" shall mean all
trade secret, patent, copyright, mask work and other intellectual property
rights throughout the world.
1.
2.2 PRIOR INVENTIONS. Inventions, if any, patented or not patented,
which I made prior to the commencement of my employment with the Company are
excluded from the scope of this Agreement. To preclude any possible uncertainty,
I have set forth on Exhibit B-2 (Previous Inventions) attached hereto a complete
list of all Inventions that I have, alone or jointly with others, conceived,
developed or reduced to practice or caused to be conceived, developed or reduced
to practice prior to the commencement of my employment with the Company, that I
consider to be my property or the property of third parties and that I wish to
have excluded from the scope of this Agreement (collectively referred to as
"Prior Inventions"). If disclosure of any such Prior Invention would cause me to
violate any prior confidentiality agreement, I understand that I am not to list
such Prior Inventions in Exhibit B-2 but am only to disclose a cursory name for
each such invention, a listing of the party(ies) to whom it belongs and the fact
that full disclosure as to such inventions has not been made for that reason. A
space is provided on Exhibit B-2 for such purpose. If no such disclosure is
attached, I represent that there are no Prior Inventions. If, in the course of
my employment with the Company, I incorporate a Prior Invention into a Company
product, process or machine, the Company is hereby granted and shall have a
nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with
rights to sublicense through multiple tiers of sub licensees`) to make, have
made, modify, use and sell such Prior Invention. Notwithstanding the foregoing,
I agree that I will not incorporate, or permit to be incorporated, Prior
Inventions in any Company Inventions without the Company's prior written
consent.
2.3 ASSIGNMENT OF INVENTIONS. Subject to Sections 2.4 and 2.6, I hereby
assign and agree to assign in the future (when any such Inventions or
Proprietary Rights are first reduced to practice or first fixed in a tangible
medium, as applicable) to the Company all my right, title and interest in and to
any and all Inventions (and all Proprietary Rights with respect thereto) whether
or not patentable or registrable under copyright or similar statutes, made or
conceived or reduced to practice or learned by me, either alone or jointly with
others, during the period of my employment with the Company. Inventions assigned
to the Company, or to a third party as directed by the Company pursuant to this
Section 2, are hereinafter referred to as "Company Inventions".
2.4 NONASSIGNABLE INVENTIONS. This Agreement does not apply to an
Invention that qualifies fully as a nonassignable Invention under Section 2870
of the California Labor Code (hereinafter "Section 2870"). I have reviewed the
notification on Exhibit B-1 (Limited Exclusion Notification) and agree that my
signature acknowledges receipt of the notification.
2.5 OBLIGATION TO KEEP COMPANY INFORMED. During the period of my
employment and for six (6) months after termination of my employment with the
Company, I will promptly disclose to the Company fully and in writing all
Inventions authored, conceived or reduced to practice by me, either alone or
jointly with others. In addition, I will promptly disclose to the Company all
patent applications filed by me or on my behalf within a year after termination
of employment. At the time of each such disclosure, I will advise the Company in
writing of any Inventions that I believe fully qualify for protection under
Section 2870; and I will at that time provide to the Company in writing all
evidence necessary to substantiate that belief. The Company will keep in
confidence and will not use for any purpose or disclose to third parties without
my consent any confidential information disclosed in writing to the Company
pursuant to this Agreement relating to Inventions that qualify fully for
protection under the provisions of Section 2870. I will preserve the
confidentiality of any Invention that does not fully qualify for protection
under Section 2870.
2.6 GOVERNMENT OR THIRD PARTY. I also agree to assign all my right,
title and interest in and to any particular Company Invention to a third party,
including without limitation the United States, as directed by the Company.
2.7 WORKS FOR HIRE. I acknowledge that all original works of authorship
which are made by me (solely or jointly with others) within the scope of my
employment and which are protectable by copyright are "works made for hire",
pursuant to United States Copyright Act (17 U.S.C., Section 101).
2.8 ENFORCEMENT OF PROPRIETARY RIGHTS. I will assist the Company in
every proper way to obtain, and from time to time enforce, United States and
foreign Proprietary Rights relating to Company Inventions in any and all
countries. To that end I will execute, verify and deliver such documents and
perform such other acts (including appearances as a witness) as the Company may
reasonably request for use in applying for, obtaining, perfecting, evidencing,
sustaining and enforcing such Proprietary Rights and the assignment thereof. In
addition, I will execute, verify and deliver assignments of such Proprietary
Rights to the Company or its designee. My obligation to assist the Company with
respect to Proprietary Rights relating to such Company Inventions in any and all
countries shall continue beyond the termination of my employment, but the
Company shall compensate me at a reasonable rate after my termination for the
time actually spent by me at the Company's request on such assistance.
2.
In the event the Company is unable for any reason, after reasonable effort, to
secure my signature on any document needed in connection with the actions
specified in the preceding paragraph, I hereby irrevocably designate and appoint
the Company and its duly authorized officers and agents as my agent and attorney
in fact, which appointment is coupled with an interest, to act for and in my
behalf to execute, verify and file any such documents and to do all other
lawfully permitted acts to further the purposes of the preceding paragraph with
the same legal force and effect as if executed by me. I hereby waive and
quitclaim to the Company any and all claims, of any nature whatsoever, which I
now or may hereafter have for infringement of any Proprietary Rights assigned
hereunder to the Company.
3. RECORDS. I agree to keep and maintain adequate and current records
(in the form of notes, sketches, drawings and in any other form that may be
required by the Company) of all Proprietary Information developed by me and all
Inventions made by me during the period of my employment at the Company, which
records shall be available to and remain the sole property of the Company at all
times.
4. NO CONFLICTING OBLIGATION. I represent that my performance of all
the terms of this Agreement and as an executive of the Company does not and will
not breach any agreement to keep in confidence information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree I will not enter into, any agreement either written or oral in
conflict herewith.
5. RETURN OF COMPANY DOCUMENTS. When I leave the employ of the Company,
I will deliver to the Company any and all drawings, notes, memoranda,
specifications, devices, formulas, and documents, together with all copies
thereof, and any other material containing or disclosing any Company Inventions,
Third Party Information or Proprietary Information of the Company. I further
agree that any property situated on the Company's premises and owned by the
Company, including disks and other storage media, filing cabinets or other work
areas, is subject to inspection by Company personnel at any time with or without
notice. Prior to leaving, I will cooperate with the Company in completing and
signing the Company's termination statement.
6. LEGAL AND EQUITABLE REMEDIES. Because my services are personal and
unique and because I may have access to and become acquainted with the
Proprietary Information of the Company, the Company shall have the right to
enforce this Agreement and any of its provisions by injunction, specific
performance or other equitable relief, without bond and without prejudice to any
other rights and remedies that the Company may have for a breach of this
Agreement.
7. NOTICES. Any notices required or permitted hereunder shall be given
to the appropriate party at the address specified below or at such other address
as the Party shall specify in writing. Such notice shall be deemed given upon
personal delivery to the appropriate address or if sent by certified or
registered mail, three (3) days after the date of mailing.
8. NOTIFICATION OF NEW EMPLOYER. In the event that I leave the employ
of the Company, I hereby consent to the notification of my new employer of my
rights and obligations under this Agreement.
9. GENERAL PROVISIONS.
9.1 GOVERNING LAW; CONSENT TO PERSONAL JURISDICTION. This Agreement
will be governed by and construed according to the laws of the State of
California, as such laws are applied to agreements entered into and to be
performed entirely within California between California residents. I hereby
expressly consent to the personal jurisdiction of the state and federal courts
located in San Diego County, California for any lawsuit filed there against me
by Company arising from or related to this Agreement.
9.2 SEVERABILITY. In case any one or more of the provisions contained
in this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect the other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein. If moreover, any one or more of the provisions
contained in this Agreement shall for any reason be held to be excessively broad
as to duration, geographical scope, activity or subject, it shall be construed
by limiting and reducing it, so as to be enforceable to the extent compatible
with the applicable law as it shall then appear.
3.
9.3 SUCCESSORS AND ASSIGNS. This Agreement will be binding upon my
heirs, executors, administrators and other legal representatives and will be for
the benefit of the Company, its successors, and its assigns.
9.4 SURVIVAL. The provisions of this Agreement shall survive the
termination of my employment and the assignment of this Agreement by the Company
to any successor in interest or other assignee.
9.5 EMPLOYMENT. I agree and understand that nothing in this Agreement
shall confer any right with respect to continuation of employment by the
Company, nor shall it interfere in any way with my right or the Company'S right
to terminate my employment at any time, with or without Cause, subject to all
provisions in any approved Employment Agreement.
9.6 WAIVER. No waiver by the Company of any breach of this Agreement
shall be a waiver of any preceding or succeeding breach. No waiver by the
Company of any right under this Agreement shall be construed as a waiver of any
other right. The Company shall not be required to give notice to enforce strict
adherence to all terms of this Agreement.
9.7 ENTIRE AGREEMENT. The obligations pursuant to Sections 1 and 2 of
this Agreement shall apply to any time during which I was previously employed,
or am in the future employed, by the Company as a consultant if no other
agreement governs nondisclosure and assignment of inventions during such period.
This Agreement is the final, complete and exclusive agreement of the Parties
with respect to the subject matter hereof and supersedes and merges all prior
discussions between us. No modification of or amendment to this Agreement, nor
any waiver of any rights under this Agreement, will be effective unless in
writing and signed by the Party to be charged. Any subsequent change or changes
in my duties, salary or compensation will not affect the validity or scope of
this Agreement.
This Agreement shall be effective as of the first day of my Employment
Agreement with the Company, namely: 1/1, 2001.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE
COMPLETELY FILLED OUT EXHIBIT B-1 TO THIS AGREEMENT.
Dated: 1/8/01
--------------------------------------
/s/ Xxxxx X. Xxxxx
---------------------------------------------
(SIGNATURE)
Xxxxx X. Xxxxx
---------------------------------------------
(EXECUTIVE'S PRINTED NAME)
ACCEPTED AND AGREED TO:
PREVIO, INC.
--------------------------------
--------------------------------
By: /s/ Xxx Xxxxxxxx
-----------------------------------------
Title: CEO
--------------------------------------
Dated: 1/8/01
--------------------------------------
4.
EXHIBIT B-1
LIMITED EXCLUSION NOTIFICATION
THIS IS TO NOTIFY THE EXECUTIVE in accordance with Section 2872 of the
California Labor Code that the foregoing Agreement between the Executive and the
Company does not require the Executive to assign or offer to assign to the
Company any invention that the Executive developed entirely on your own time
without using the Company's equipment, supplies, facilities or trade secret
information except for those inventions that either:
24. RELATE AT THE TIME OF CONCEPTION OR REDUCTION TO PRACTICE OF THE
INVENTION TO THE COMPANY'S BUSINESS, OR ACTUAL OR DEMONSTRABLY ANTICIPATED
RESEARCH OR DEVELOPMENT OF THE COMPANY;
25. RESULT FROM ANY WORK PERFORMED BY THE EXECUTIVE FOR THE COMPANY.
To the extent a provision in the foregoing Agreement purports to
require the Executive to assign an invention otherwise excluded from the
preceding paragraph, the provision is against the public policy of this state
and is unenforceable.
This limited exclusion does not apply to any patent or invention
covered by a contract between the Company and the United States or any of its
agencies requiring full title to such patent or invention to be in the United
States.
I ACKNOWLEDGE RECEIPT of a copy of this notification.
/s/ Xxxxx X. Xxxxx
---------------------------------------------
XXXXX X. XXXXX
Date: 1/8/01
---------------------------------------
WITNESSED BY:
Xxx Xxxxxxxx
----------------------------------
(PRINTED NAME OF REPRESENTATIVE)
EXHIBIT B-2
TO: PREVIO, INC.
FROM: XXXXX X. XXXXX
DATE: 1/8, 2001
SUBJECT: PREVIOUS INVENTIONS
1. Except as listed in Section 2 below, the following is a complete list of all
inventions or improvements relevant to the subject matter of my employment by
PREVIO, INC. (the "Company") that have been made or conceived or first reduced
to practice by me alone or jointly with others prior to my engagement by the
Company:
[X] No inventions or improvements.
[_] See below:
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
[_] Additional sheets attached.
2. Due to a prior confidentiality agreement, I cannot complete the
disclosure under Section 1 above with respect to inventions or improvements
generally listed below, the proprietary rights and duty of confidentiality with
respect to which I owe to the following party(ies):
INVENTION OR IMPROVEMENT PARTY(IES) RELATIONSHIP
1. ________________________ ________________ ________________________
2. ________________________ ________________ ________________________
3. ________________________ ________________ ________________________
[_] Additional sheets attached.
