PERSONAL SERVICES AGREEMENT
This Personal Services Agreement (the "Agreement") is entered into this
1st day of June 2004 by and between CytoDyn, Inc., a Colorado corporation (the
"Company") with its principal place of business at 000 X. XxXxxxxx Xxxxxx, Xxxxx
0, Xxxxx Xx, Xxx Xxxxxx 00000, and Wellington X. Xxxx an individual residing at
X.X. Xxx 00, Xxxxxxxx, XX 97544("Executive") to be effective as of June 1, 2004
(the "Effective Date").
PREMISES
WHEREAS, the Company desires to employ Executive pursuant to the terms
and conditions and for the consideration set forth in this Agreement and
Executive desires to enter the employ of the Company pursuant to such terms and
conditions and for such consideration;
WHEREAS, the provisions of this Agreement are a condition of Executive
being employed by the Company, of Executive's having access to confidential
business and technological information, and of Executive's being eligible to
receive certain benefits of the Company. This Agreement is entered into, and is
reasonably necessary, to protect confidential information and customer
relationships to which Executive may have access, and to protect the goodwill
and other business interests of the Company; and
WHEREAS, the provisions of this Agreement are also a condition to
Executive's agreement to provide personal services to the Company.
NOW THEREFORE, in consideration of the mutual promises and covenants
agreed to herein, the receipt and sufficiency of which are hereby acknowledged,
the Company and Executive agree as follows:
AGREEMENT
1. Position, Term, Duties, Responsibilities.
(a) Position. Executive shall be employed by the Company
as its Chief Financial Officer to act in accordance with the terms and
conditions hereinafter set forth.
(b) Duties. Executive shall faithfully and diligently
render such services and perform such related duties and
responsibilities as are customarily performed by a person holding such
title and as otherwise may, from time to time, be reasonably assigned
to Executive by the Company's Chief Executive Officer and/or the
Company's Board of Directors (the "Board"). Executive shall comply with
the provisions of this Agreement and all reasonable rules, regulations
and administrative directions now or hereafter established by the
Company.
(c) Term. This Agreement shall be for a term beginning on
the Effective Date and terminating the earlier of (i) the date which is
24 months from the Effective Date (the "Expiration Date"), or (ii) the
date on which Executive's employment is terminated pursuant to Section
3 (collectively, the "Term").
(d) Proprietary Information. Executive agrees to sign and
to be bound by and comply with the terms and conditions of the
Company's Employee Proprietary Information and Inventions Agreement,
which is attached to this Agreement as Exhibit A and hereby
incorporated into and deemed a part of this Agreement.
2. Compensation, Bonuses and Benefits.
(a) Incentive Compensation Program. During Executive's
employment with the Company, Executive shall be entitled to participate
in such incentive compensation programs as are from time to time
established and approved by the Board in accordance with the Company's
practice for similarly situated employees.
(b) Benefits. Executive shall be entitled to participate
in such employee benefit plans which the Company provides or may
establish from time to time for the benefit of employees, subject to
the terms of each such plan and subject to the right of the Company and
the Board to modify, revise or eliminate such benefit plans from time
to time in their sole discretion. Executive shall pay for the portion
of the cost of such benefits as is established from time-to-time by the
Company as the portion of such cost to be paid by senior executives of
the Company.
(c) Costs and Expenses. Executive shall be entitled to
reimbursement for all ordinary reasonable out-of-pocket business
expenses that are reasonably incurred by Executive in furtherance of
the Company's business, in accordance with the policies adopted from
time to time by the Company or the Board. Executive will comply with
the Company's travel policies as established from time to time by the
Company or the Board.
(d) Vacation. Executive shall be entitled to vacations
with pay in accordance with the Company's practice for similarly
situated employees. Executive will use his best efforts to schedule
vacation periods to minimize disruption of the Company's business.
3. Termination.
(a) Mutual Agreement. Executive's employment under this
Agreement may be terminated at any time by the mutual written agreement
of the Company and Executive.
(b) Voluntary. Executive's employment under this
Agreement may be terminated by Executive with or without the consent of
the Company by giving written notice of termination at least four weeks
prior to the effective date of such termination. After receipt of such
notice the Company may accelerate the date that such termination will
take effect pursuant to this Section 3(b) without being in breach of
this Agreement.
(c) Without Cause. The Company may terminate Executive's
employment under this Agreement at any time without Cause effective
immediately upon written notice to Executive.
(d) Disability or Death. The Company may terminate
Executive's employment under this Agreement upon the death or
disability of Executive. Subject to Executive's rights under any
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applicable law, including the Americans with Disabilities Act,
Executive shall be considered disabled if (i) Executive is unable to
perform his duties under this Agreement as a result of injury, illness
or other disability for a period of 180 consecutive days or for 180
days in any 365 day period and (ii) the Board reasonably determines
that Executive has been unable to perform such duties for either 180
day period described in Section 3(d)(i) above as a result of injury,
illness or other disability.
(e) For Cause by the Company. The Company may terminate
Executive's employment for "Cause" at any time prior to the expiration
of the Term effective immediately upon delivery of written notice to
Executive. For purposes of this Agreement, "Cause" shall mean:
(i) If Executive materially violates any term of
this Agreement and such violation is not substantially
remedied within 30 days of written notice from the Company to
Executive;
(ii) Willful misfeasance, gross negligence or
nonfeasance of duty by Executive that is reasonably likely to
be detrimental or damaging or that has the effect of injuring
or damaging the reputation, business or business relationships
of the Company or any of its subsidiaries or any of their
respective officers, directors or employees;
(iii) Any arrest, indictment (defined as any
proceeding in which "probable cause" is found), conviction (or
the civil equivalent) of Executive or a plea of guilty or nolo
contendere by Executive to a charge based on a federal or
state felony or serious criminal or civil offense (even if the
crime is classified under the applicable law as a
"misdemeanor"), including, but not limited to (1) crimes or
civil offenses involving theft, embezzlement, fraud,
dishonesty or moral turpitude; (2) crimes or civil offenses
based on banking or securities laws (including the
Xxxxxxxx-Xxxxx Act of 2002); and (3) civil enforcement actions
brought by federal or state regulatory agencies (including the
Securities and Exchange Commission).
(iv) Willful or prolonged absence from work by
the Executive (other than by reason of legally protectable
disability due to physical or mental illness) or failure,
neglect or refusal by the Executive to perform his duties and
responsibilities.
(f) Termination After Change of Control. Other than for
voluntary termination under Section 3(b), Executive may terminate his
employment within six months after a Change of Control but only upon
two weeks prior written notice to the Company.
"Change of Control" shall mean the occurrence of one or more
of the following:
(i) any person (as defined in Sections 3(a)(9)
and 13(d)(3) of the Securities Exchange Act of 1934, as
amended) other than an existing stockholder or an Affiliate
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that directly or indirectly becomes the owner of 50% or more
of the Voting Stock;
(ii) a complete liquidation or dissolution of the
Company other than a liquidation or dissolution occurring
after any of the following transactions: the merger or
consolidation of the Company with an Affiliate, the transfer
of 50% or more of the Voting Stock of the Company to an
Affiliate or Affiliates or the sale or other transfer of all
or substantially all of the assets of the Company to an
Affiliate or Affiliates;
(iii) the sale of all or substantially all of the
Company's assets to a single purchaser or group of affiliated
purchasers, other than any Affiliate or Affiliates, in one or
a series of related transactions; or
(iv) the Company engages in a merger or
consolidation with another entity other than an Affiliate and
immediately after that merger or consolidation, the persons or
entities that were stockholders of the Company immediately
prior to that merger or consolidation hold, directly or
indirectly, less than 50% of the Voting Stock of the surviving
entity.
"Affiliate" shall mean any corporation, partnership, trust or
other entity of which the Company and/or any of its Affiliates directly
or indirectly owns a majority of the outstanding shares of any class of
equity security of such corporation, partnership, trust or other entity
and any corporation, partnership, trust or other entity which directly
or indirectly owns a majority of the outstanding shares of any class of
equity security of the Company or any of its Affiliates.
"Voting Stock" shall mean, with respect to a corporation, the
capital stock of any class or classes of that corporation having
general voting power under ordinary circumstances, in the absence of
contingencies, to elect directors of such corporation and, with respect
to any other entity, the securities of that entity having such general
voting power to elect the members of the managing body of that entity.
(g) Termination for Good Reason. Executive may terminate
his employment at any time for "Good Reason." For purposes of this
Agreement "Good Reason" shall mean any action on the part of the
Company not consented to by Executive in writing (which action shall
not have been cured within 30 days following written notice from
Executive to the Board specifying that such action will give rise to a
termination of Executive's employment hereunder for Good Reason) having
the following effect or effects: (i) a material diminution of
Executive's job duties, responsibilities or requirements that is
detrimentally inconsistent with the position or positions listed in
Section 1(a) and Executive's prior duties, responsibilities or
requirements; (ii) a reduction in Executive's salary then in effect,
other than a reduction comparable to reductions generally applicable to
similarly situated employees of the Company; (iii) the permanent
relocation of Executive, as a result of a Change of Control, to a
facility or location that is more than 50 miles from the Company's
current location; or (iv) in the case of a Change of Control, a
significant change in the reporting relationship or title from that
existing immediately prior to the Change of Control.
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(h) Notice of Termination. Any purported termination of
employment shall be communicated through written notice indicating the
specific provision in this Agreement relied upon. In addition,
notwithstanding the termination date specified in Executive's notice of
termination to the Company under this Section 3, the Company may, in
its sole discretion, accelerate the termination date to any earlier
date up to and including the date it received such notice and such date
shall be considered the termination date.
4. Payments.
(a) Generally. Except as provided below, upon the
termination of this Agreement for any reason, all compensation and
benefits, except benefits provided by law (e.g., COBRA health insurance
continuation benefits), will immediately cease to accrue, and all
compensation and, except as otherwise required by applicable law,
benefits accrued through the date of termination shall be paid to
Executive in the manner provided below.
(b) Death or Disability. If the Company terminates
Executive's employment under this Agreement due to death or disability,
under Section 3(d) titled "Disability or Death," Executive or his
estate shall not be entitled to any further payments except (i)
Executive's then current Base Salary pursuant to Section 2(a) through
the date of death and unreimbursed expenses to the date of death as
provided herein, and (ii) any accrued compensation and benefits as
provided in Section 2.
(c) Voluntary or For Cause. If Executive terminates his
employment under this Agreement without cause under Section 3(a),
titled "Mutual Agreement", or if this Agreement is terminated under
Section 3(b), titled "Voluntary," or if this Agreement is terminated by
the Company under Section 3(e) titled "For Cause by the Company,"
Executive shall not be entitled to any further payments except his then
current Base Salary pursuant to Section 2(a) through the date of
termination and unreimbursed expenses to the date of termination as
provided herein.
(d) Termination after Change of Control. If, within six
months after a Change of Control, Executive terminates his employment
for Good Reason, then (i) the Company shall pay to Executive in either
a lump-sum or through salary continuation, at the Company's sole
discretion, the amount of Executive's then current Base Salary pursuant
to Section 2(a) for the balance of the Term and for a period of 12
months after expiration of the Term, (ii) the Company and the Board
shall cause all of Executive's unvested stock options to immediately
vest effective as of the date Executive's employment terminates, and
Executive shall have four months to exercise the options vested under
this Section 4(d), (iii) if Executive elects continued coverage under
the Company's health plan pursuant to the Comprehensive Omnibus Budget
Reconciliation Act of 1985, as amended, then the Company shall continue
to pay the Company's portion of the premium for Executive's continued
coverage under the Company's health plan until the first to occur of
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(A) the date that is 12 months after the date of termination and (B)
the date upon which Executive is employed by a third party and is
eligible for coverage by such third party's health insurance plan and
(iv) if Executive elects continued coverage under the Company's life
insurance plan, then the Company shall continue to pay the Company's
portion of the premium for Executive's continued coverage under the
Company's life insurance plan, or if continued coverage under the
Company's life insurance plan is not available pursuant to the terms of
such plan, then the Company shall pay to Executive the amount of the
premium that would otherwise be payable by the Company if Executive's
employment were not terminated, until the date that is 12 months after
the date of termination. Thereafter, Executive shall not be entitled to
receive, and the Company shall have no obligation to provide Executive
with any additional salary, payments or benefits of any kind.
(e) Without Cause or for Good Reason. If the Company
terminates Executive's employment under Section 3(c) titled "Without
Cause", or the Executive terminates for "Good Reason" pursuant to
Section 3(g)(i) or (ii) then (i) the Company shall pay to Executive in
either a lump-sum or through salary continuation, at the Company's sole
discretion, the amount of Executive's then current Base Salary pursuant
to Section 2(a) for the balance of the Term and for a period of 12
months after the expiration of the Term and (ii) if Executive elects
continued coverage under the Company's health plan pursuant to the
Comprehensive Omnibus Budget Reconciliation Act of 1985, as amended,
then the Company shall continue to pay the Company's portion of the
premium for Executive's continued coverage under the Company's health
plan until the first to occur of (A) the date that is 12 months after
the date of termination and (B) the date upon which Executive is
employed by a third party and is eligible for coverage by such third
party's health insurance plan. Thereafter, Executive shall not be
entitled to receive, and the Company shall have no obligation to
provide Executive with any additional salary, payments or benefits of
any kind.
(f) Termination by Expiration Date. In the event
Executive's employment is terminated by the occurrence of the
Expiration Date, the Company shall have no obligation to pay Executive
or provide Executive with benefits of any kind beyond the Expiration
Date.
(g) Date of Termination. In each of the foregoing cases,
termination is the date of actual termination, not the date notice of
termination is given. Other than payments owing under a provision or
laws providing for payments at a different time, all payments for
accrued unpaid monthly compensation shall be made within 10 days after
the end of the month following the month in which termination occurred
and all payments for reimbursement shall be made within 45 days after
the end of the month following the month in which termination occurred.
(h) Release. Executive's eligibility for the benefits set
forth in Section 4(d) and Section 4(e) is conditioned on Executive
having first signed a release agreement in such form as is reasonably
satisfactory to the Company.
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5. Restrictive Covenants.
(a) Nonsolicitation of Employees. During the Term, and
for a period of one year thereafter, Executive will not directly or
indirectly solicit or induce, or aid any other entity or person in
soliciting or inducing, or knowingly permit any entity directly or
indirectly controlled by him/her to solicit or induce, any person who
is, or during the last three months of Executive's employment by the
Company was, an officer, director, executive, consultant or employee of
the Company or any of its affiliates or any of its existing or future
subsidiaries to leave the employment or association with the Company,
its affiliate or subsidiary, to become employed or retained by any
other entity or to participate in the establishment of any other
business.
(b) Injunction. Executive agrees that in addition to the
remedies the Company may seek and obtain pursuant to this Agreement,
the period during which the non-solicitation covenant contained in this
Section 5 applies shall be extended by any and all periods during which
Executive shall be found by a court possessing personal jurisdiction
over him/her to have been in violation of the covenants contained in
this Section 5.
6. Termination Obligations of Executive.
(a) Return of the Company's Property. Executive hereby
acknowledges and agrees that all personal property, including, without
limitation, all books, manuals, records, reports, notes, contracts,
lists, blueprints, and other documents, or materials, or copies
thereof, and equipment furnished to or prepared by Executive in the
course of or incident to Executive's employment, belong to the Company
and shall be promptly returned to the Company upon termination of
Executive's employment.
(b) Representations, Obligations and Warranties Survive
Termination of Employment. The representations, obligations and
warranties contained in Sections 1(d), 4, 5, 6, 7, 8, 9, 10, 11, 12,
13, 15, 16 and 17 as well as the terms and conditions of Exhibit A
shall survive the termination of Executive's employment with the
Company.
(c) Cooperation in Pending Work. Executive agrees to
fully cooperate with the Company in all matters relating to the winding
up of pending work on behalf of the Company and the orderly transfer of
work to other employees of the Company following any termination of
Executive's employment. Executive shall also cooperate in the
resolution of any dispute, including litigation of any action,
involving the Company that relates in any way to Executive's activities
while employed by the Company.
7. Confidentiality.
(a) Confidential Information. Executive acknowledges that
he has had and will have access to certain information related to the
business, operations, future plans and customers of the Company, the
disclosure or use of which could cause the Company substantial losses
and damages. Accordingly, Executive covenants that during the term of
his employment with the Company and thereafter he will keep
confidential all information and documents furnished to him by or on
behalf of the Company and not use the same to his advantage, except to
the extent such information or documents are lawfully obtained from
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other sources on a non-confidential (as to the Company) basis or are in
public domain through no fault on his part or is consented to in
writing by the Company.
(b) Innovations, Patents, and Copyrights. Executive
agrees to promptly disclose, in writing, all Innovations to the
Company. Executive further agrees to provide all assistance requested
by the Company, at its expense, in the preservation of its interests in
any Innovations (as hereinafter defined), and hereby assigns and agrees
to assign to the Company all rights, title and interest in and to all
worldwide patents, patent applications, copyrights, trade secrets and
other intellectual property rights or "Moral Rights" in any Innovation.
Furthermore, during the term of this Agreement, the Company may, with
Executive's written permission (such permission not to be unreasonably
withheld), use Executive's name and image as appropriate in the conduct
of its business.
"Innovations" shall mean all developments, improvements,
designs, original works of authorship, formulas, processes, software
programs, databases, and trade secrets, whether or not patentable,
copyrightable or protectable as trade secrets, that Executive by
himself or jointly with others, creates, modifies, develops, or
implements during the period of Executive's employment which relate in
any way to the Company's business. The term Innovations shall not
include Innovations developed entirely on Executive's own time without
using the Company's equipment, supplies, facilities or Confidential
Information, and which neither relate to the Company's business, nor
result from any work performed by or for the Company.
8. Alternative Dispute Resolution. The Company and Executive
mutually agree that any controversy or claim arising out of or relating to this
Agreement or the breach thereof, or any other dispute between the parties
relating in any way to Executive's employment with the Company or the
termination of that relationship, including disputes arising under the common
law and/or any federal or state statutes, laws or regulations, shall be
submitted to mediation before a mutually agreeable mediator, which cost is to be
borne equally by the parties. In the event mediation is unsuccessful in
resolving the claim or controversy, such claim or controversy shall be resolved
exclusively by arbitration. The claims covered by this Agreement ("Arbitrable
Claims") include, but are not limited to, claims for wages or other compensation
due; claims for breach of any contract (including this Agreement) or covenant
(express or implied); tort claims; claims for discrimination (including, but not
limited to, race, sex, religion, national origin, age, marital status, medical
condition, or disability); claims for benefits (except where an employee benefit
or pension plan specifies that its claims procedure shall culminate in an
arbitration procedure different from this one); and claims for violation of any
federal, state, or other law, statute, regulation, or ordinance, except claims
excluded in the following paragraph. The parties hereby waive any rights they
may have to trial by jury in regard to Arbitrable Claims.
Claims Executive or the Company may have regarding Workers'
Compensation or unemployment compensation benefits and the nonsolicitation
provisions of this Agreement are not covered by the arbitration and mediation
provisions of this Agreement. Claims Executive or the Company may have for
violation of the proprietary information provisions of this Agreement as well as
the terms and provisions of Exhibit A of this Agreement are not covered by the
arbitration and mediation provisions of this Section 8.
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Arbitration under this Agreement shall be the exclusive remedy for all
Arbitrable Claims. The Company and Executive agree that arbitration shall be
held in Santa Fe, New Mexico and shall be in accordance with the then-current
Employment Dispute Resolution Rules of the American Arbitration Association,
before an arbitrator licensed to practice law in New Mexico. The arbitrator
shall have authority to award or grant both legal, equitable, and declaratory
relief. Such arbitration shall be final and binding on the parties. The Federal
Arbitration Act shall govern the interpretation and enforcement of this Section
8 pertaining to Alternative Dispute Resolution.
This Agreement to mediate and arbitrate survives termination of
Executive's employment.
9. Notices. All notices and other communications provided for in
this Agreement shall be dated and in writing and shall be deemed to have been
duly given (a) on the date of delivery, if delivered personally, by e-mail or by
facsimile machine, receipt confirmed, (b) on the following business day, if
delivered by a nationally recognized overnight courier service, with receipt
acknowledgement requested, or (c) three business days after mailing, if sent by
registered or certified mail, return receipt requested, postage prepaid, in each
case, to the party to whom it is directed at the following address (or at such
other address as any party hereto shall hereafter specify by notice in writing
to the other parties hereto):
CytoDyn, Inc.
000 X. XxXxxxxx Xxxxxx, Xxxxx 0
Xxxxx Xx, Xxx Xxxxxx 00000
Attn: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to Executive at:
___________________________________
___________________________________
___________________________________
Telephone: (____) ________
10. Entire Agreement. The terms of this Agreement, together with
Exhibit A to this Agreement, are intended by the parties to be the final and
exclusive expression of their agreement with respect to the employment of
Executive by the Company and may not be contradicted by evidence of any prior or
contemporaneous statements or agreements. The parties further intend that this
Agreement shall constitute the complete and exclusive statement of its terms and
that no extrinsic evidence whatsoever may be introduced in any judicial,
administrative, or other legal proceeding involving this Agreement.
11. Amendments, Waivers. This Agreement may not be modified,
amended, or terminated except by an instrument in writing, signed by Executive
and by a duly authorized representative of the Company other than Executive. No
failure to exercise and no delay in exercising any right, remedy, or power under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, or power under this Agreement preclude
any other or further exercise thereof, or the exercise of any other right,
remedy, or power provided herein or by law or in equity.
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12. Assignment; Successors and Assigns. Executive agrees that
Executive will not assign, sell, transfer, delegate or otherwise dispose of,
whether voluntarily or involuntarily, or by operation of law, any rights or
obligations under this Agreement, nor shall Executive's rights be subject to
encumbrance or the claims of creditors. Any purported assignment, transfer, or
delegation shall be null and void. Subject to the foregoing, this Agreement
shall be binding upon Executive and the Company and shall inure to the benefit
of the parties and their respective heirs, legal representatives, successors,
and permitted assigns, and shall not benefit any person or entity other than
those enumerated above.
13. Use of Employee's Likeness. Executive authorizes the Company
to use, reuse and to reasonably grant others the right to use and reuse without
additional compensation, Executive's name, photograph, likeness (including
caricature), voice and biographical information and any reproduction or
simulation thereof in any media now known or hereafter developed, for valid
business purposes of the Company.
14. Exclusion of Property of Others. Executive covenants that
he/she has not and will not bring to the Company or use in the performance of
his duties any documents or materials of a former employer that are not
generally available to the public or that have not been legally transferred to
the Company.
15. Executive's Authorization to Deduct Amounts Owed. Upon
Executive's separation from employment, the Company is authorized to deduct from
Executive's final wages or other monies due Executive any debts or amounts owed
to the Company by Executive.
16. Severability; Enforcement. If any provision of this Agreement,
or the application thereof to any person, place, or circumstance, shall be held
by a court or arbitrator of competent jurisdiction to be invalid, unenforceable,
or void, the remainder of this Agreement and such provisions as applied to other
persons, places, and circumstances shall remain in full force and effect.
17. Governing Law. The validity, interpretation, enforceability,
and performance of this Agreement shall be governed by and construed in
accordance with the laws of the United States and the Federal Arbitration Act to
the extent applicable, and otherwise by the laws of the State of New Mexico.
18. Executive Acknowledgment. The parties acknowledge (a) that
they have consulted with or have had the opportunity to consult with independent
counsel of their own choice concerning this Agreement, and (b) that they have
read and understand the Agreement, are fully aware of its legal effect, and have
entered into it freely based on their own judgment and not on any
representations or promises other than those contained in this Agreement.
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19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Signatures to this
Agreement may be transmitted via facsimile and such signatures shall be deemed
to be originals.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
Company Executive
______________________________ ______________________________
Name:_________________________ Name:_________________________
Title:________________________
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EXHIBIT A
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
A-1
