EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is effective as of June
19, 2000, by and between XXXX.XXX, INC., a Delaware corporation (the "COMPANY"),
and Xxxxxxx X. Xxxxxxxxx ("EXECUTIVE").
RECITALS
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A. Subject to the terms and provisions of this Agreement, the Company
has offered to Executive the position of Chief Executive Officer of the Company,
and Executive accepts such offer.
B. The Company and Executive desire to enter into a formal arrangement
as set forth herein.
AGREEMENT
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NOW, THEREFORE, in accordance with the recitals set forth above and AS
CONSIDERATION for the representations, warranties, covenants and agreements set
forth in this Agreement, as well as for other good and valuable consideration
the receipt and sufficiency of which hereby are acknowledged, the Company and
Executive hereby agree as follows:
1. Recitals an Integral Part of Agreement.
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The recitals set forth above are and for all purposes shall be
interpreted as being an integral part of this Agreement, constituting
acknowledgments and agreements by and among the parties hereto, and are
incorporated in this Agreement by this reference.
2. Employment.
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Subject to the terms and conditions set forth in this Agreement, the
Company hereby employs Executive, and Executive hereby accepts employment with
the Company, as the Company's Chief Executive Officer ("CEO").
3. Term.
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The term of Executive's employment under this Agreement shall commence
effective as of June 19, 2000 and shall continue for a period of two (2)
consecutive years (the "TERM"), unless earlier terminated as herein provided or
by operation of law. Thereafter, this Agreement and the Term shall be extended
automatically for successive one (1) year periods unless terminated in
accordance with the terms of this Agreement or unless either party hereto, not
less than thirty (30) days before the commencement of any such one (1) year
extension period, notifies the other party hereto that this Agreement will
expire as of midnight, June 18 of the year immediately-preceding such one (1)
year extension period. This Agreement may be terminated earlier as hereinafter
provided.
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4. Duties and Services.
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Executive shall perform such duties and functions as Executive is
reasonably instructed to perform from time to time by the Board of Directors of
the Company (the "BOARD OF DIRECTORS") that are reasonably within the scope of
the job description of CEO. In the performance of Executive's duties, Executive
shall work full-time and shall comply with the policies of the Company and be
subject to the direction of the Board of Directors.
At all times during the Term, Executive shall perform Executive's
duties and obligations under this Agreement faithfully and diligently, shall
devote all of Executive's business time, attention, abilities and efforts
exclusively to the business of the Company and shall not accept other employment
or engage in any other outside business activity that interferes with the
performance of Executive's duties and responsibilities under this Agreement or
involves actual or prospective competition with the business of the Company.
Executive shall perform industriously Executive's duties under the supervision
of and report to the Board of Directors and shall accept and comply with all
directions from and all policies from time to time established by the Board of
Directors.
Executive shall not directly or indirectly render any service of a
business, commercial or professional nature to any other person, entity or
organization, for compensation, without the prior consent of the Board of
Directors; provided, however, that the foregoing shall not preclude Executive
from (a) serving on boards of trade associations and/or charitable organizations
(subject to reasonable approval by the Board of Directors) and (b) engaging in
charitable activities and community affairs, provided that such directorships
and activities do not interfere with the proper performance of Executive's
duties and responsibilities under this Agreement.
If, at any time during the Term, Executive is a director of the
Company, or is elected or appointed as a director of the Company, Executive
shall serve in such capacity without additional compensation, except that
Executive may receive such directors' fees or similar compensation as the Board
of Directors may, in its sole and absolute discretion, establish from time to
time. At the request of the Board of Directors or the board of directors of one
or more subsidiaries of the Company (individually, a "SUBSIDIARY," and,
collectively, "SUBSIDIARIES") or of any affiliate of the Company (individually,
an "AFFILIATE," and, collectively, "Affiliates"), Executive shall serve during
the Term as a director of any such Subsidiary or Affiliate without additional
compensation, except that Executive may receive such directors' fees or similar
compensation as the board of directors of the Subsidiaries or Affiliates may, in
their sole and absolute discretion, establish from time to time; and, in the
performance of such duties, Executive shall comply with the policies of the
board of directors of each such Subsidiary and Affiliate. Unless the context
otherwise requires, for the purposes of this Agreement, the term "COMPANY" shall
be deemed to include the Company's Subsidiaries, if any, and the Company's
Affiliates, if any. The Company is not required by this Agreement to cause
Executive's election or appointment as a director or officer.
5. Base Salary.
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As compensation for the services rendered by Executive under this
Agreement, including all services rendered by Executive as an officer or
director of the Company (as applicable), the Company agrees to pay to Executive,
and Executive agrees to accept, a base salary at the annual rates that from time
to time during the Term are established by the Compensation Committee of the
Board of Directors (the "COMPENSATION COMMITTEE") or, if no Compensation
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Committee exists, by the Board of Directors (the "BASE SALARY"), payable on the
Company's regular payroll dates for salaried executives, and subject to such
withholdings and deductions as are required by law; provided, however, that,
except as otherwise provided in this Section 5, in no event shall the Base
Salary be less than Three Hundred Fifty Thousand Dollars ($350,000.00) per year.
Subject to the foregoing, any or all of the annual rates for the Base Salary may
be increased or decreased (but in no event below $350,000) at any time and from
time to time by and in the discretion of the Compensation Committee or the Board
of Directors.
6. Additional Compensation.
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(a) "Sign-on Bonus".
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In addition to the Base Salary, within thirty (30) days of the date on
which the Company and Executive execute and deliver this Agreement (the
"EXECUTION AND DELIVERY DATE") as a "sign-on" bonus to Executive (the "SIGN-ON
BONUS"), the Company shall pay to Executive One Million Dollars ($1,000,000.00).
Notwithstanding the foregoing, Executive shall earn (and for all purposes shall
be deemed to earn) the Sign-On Bonus during the Term. Accordingly, if Executive
voluntarily terminates Executive's employment with the Company other than for
Good Reason (as defined below), or if the Company terminates Executive's
employment with the Company for "Cause" or otherwise terminates this Agreement
for "Cause" under the terms and provisions of Section 12 of this Agreement, then
the amount of the Sign-On Bonus shall be reduced in proportion to the amount of
time left in the first year of employment at the date of such termination (the
"UNEARNED PORTION"), and, accordingly, within thirty (30) days after the date of
such termination, (i) Executive shall return to the Company the Unearned
Portion, in cash or its equivalent (the "CASH RETURN"), and/or (ii), in
Executive's sole and absolute discretion, Executive may repay the Sign-On Bonus
by delivering shares of Company common stock having a fair market value equal to
thereto.
(b) Discretionary Cash Bonus.
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In addition to the Base Salary, at the end of each fiscal year (defined
by the Company as April 1 through March 31) of the Term (commencing with the
Company's fiscal year ending March 31, 2001), Executive shall be eligible to
receive a cash bonus (the "DISCRETIONARY CASH BONUS"), due and payable in cash
on the date that is thirty (30) days after the end of the Company's fiscal year,
provided that the Compensation Committee or the Board of Directors before such
date has determined and formally declared the amount of such Discretionary Cash
Bonus (if any). The amount (if any) of the Discretionary Cash Bonus for any
particular fiscal year of the Term shall be determined and formally declared (if
at all) by the Compensation Committee or the Board of Directors by no later than
April 15 of the following fiscal year. In no event shall any Discretionary Cash
Bonus exceed the amount of Four Hundred Thousand Dollars ($400,000.00). In
making such determination (if at all), the Compensation Committee or the Board
of Directors and Executive shall mutually agree on Company objectives for each
fiscal year. The Board of Directors shall make its determination based upon the
Company's accomplishment of such objectives and Executive's contribution
thereto.
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(c) Nonqualified Stock Options.
--------------------------
In addition to the Base Salary, effective as of the Execution and
Delivery Date, pursuant to the Company's 2000 Management Equity Incentive Plan
(the "PLAN"), the Company shall grant to Executive nonqualified stock options
("STOCK OPTIONS") to purchase one million (1,000,000) shares of the Company's
common stock ("COMMON STOCK"), with an exercise price equal to the closing sales
price of Common Stock on the Execution and Delivery Date. The Stock Options will
vest as follows: (i) 100,000 Stock Options as of the Execution and Delivery
Date; (ii) 150,000 Stock Options at the end of each consecutive six (6) month
period of continuous employment of Executive under this Agreement after the
Execution and Delivery Date, until all 1,000,000 Stock Option are vested,
provided that Executive is employed by the Company on each such vesting date.
All Stock Options will be exercisable for a period of ten (10) years from the
date of grant, subject to earlier termination or expiration as provided in this
Agreement and the related Stock Option Agreement. All Stock Options will be
subject to all of the terms, provisions and conditions of the Plan; provided,
however, the terms and provisions of this Agreement shall supercede and control
any inconsistency or contradiction between the Plan and this Agreement. With
respect to any Common Stock issued or issuable to Executive upon exercise of
Stock Options, Executive shall execute all "market standoff" or "lock-up"
agreements required by the Company's underwriters to be executed by the
Company's directors and officers generally.
(d) Automobile Allowance.
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During the Term, Executive shall be entitled to receive from the
Company a monthly automobile expense allowance equal to SIX HUNDRED FIFTY
($650.00); provided, however, that Executive shall be solely and exclusively
responsible and liable for maintaining automobile insurance for any automobile
acquired or otherwise used by Executive in relation to such allowance.
(e) Housing Allowance.
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During the Term, the Company shall lease, at Company's expense, an
apartment for the exclusive use of Executive.
(f) Cellular Telephone, Laptop Computer and Desktop Computer.
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During the Term, the Company at its sole expense shall make available
to Executive for Executive's use a cellular telephone, a laptop computer and a
desktop computer.
(g) Travel.
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During the Term, Executive shall be entitled to be reimbursed by the
Company for air travel expenses (first class) for two trips per month (up to
four days each) from Southern California to the New York area.
(h) Directorship.
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As soon as practicable after the Execution and Delivery Date, the
Company shall use its best efforts to ensure that Executive is nominated for
election as a director of the Company.
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7. Other Compensation and Benefits.
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During the Term, Executive shall be eligible to participate in and
receive other compensation and benefits provided by the Company to its senior
management personnel or its employees generally. Such benefits may include
compensation and benefits provided under any profit sharing plan, 401(k) plan,
stock option plan, stock purchase plan, pension plan, short and long-term
disability insurance plan, hospital insurance plan, major medical insurance
plan, dental insurance plan, retirement plan and group life insurance plan in
accordance with the terms of such plans, as such plans may be in effect from
time to time. The Company reserves the right, in its sole and absolute
discretion, to amend, modify or discontinue any of such benefits for all
employees generally, in accordance with applicable law.
8. Vacation.
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Unless for any given calendar year during the Term a longer period of
vacation for Executive is approved by the Board of Directors, Executive shall
accrue thirty (30) days of paid vacation each calendar year during the Term. In
accordance with Company policy, unused accrued vacation days may be carried
forward from one calendar year to the next. Additional vacation will not accrue
once Executive has accrued the number of vacation days equivalent to twice the
annual allotment. If Executive's earned but unused vacation reaches this
maximum, Executive will not accrue more additional vacation benefits. If
Executive later uses enough vacation to fall below the maximum, Executive will
resume earning vacation benefits from that day forward.
9. Indemnification Insurance; Indemnification.
------------------------------------------
During the Term, for the period in which Executive is a director and/or
officer of the Company, the Company shall provide Executive with director's and
officer's liability insurance to the extent that such insurance is provided to
other directors and officers of the Company and is available at commercially
reasonable premiums. Such insurance shall be in such form, and shall provide for
such coverage and deductibles, as shall be commercially reasonable and standard
for companies in businesses and circumstances similar to those of the Company.
10. Reimbursement of Expenses.
-------------------------
During the Term, the Company shall, upon presentation of appropriate
vouchers or receipts in accordance with the Company's customary policies and
practices, reimburse Executive for reasonable out-of-pocket expenses paid for by
Executive on behalf of the Company in connection with the performance of
Executive's duties under this Agreement.
11. Termination.
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(a) Termination by the Company.
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Executive's employment under this Agreement shall be terminated upon
the death of Executive and also may be terminated by the Company giving
appropriate written notice of termination upon the occurrence of any of the
following events:
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(i) THE DISABILITY OF EXECUTIVE. For the purposes of this
Agreement, the term "DISABILITY" shall mean the inability of Executive, due to
illness, accident or any other physical or mental impairment, to perform the
essential functions of Executive's position under this Agreement with reasonable
accommodation for a period of six (6) consecutive months or for an aggregate of
nine (9) months, whether or not consecutive, during any twelve (12) consecutive
months during the Term. The determination of whether Executive is unable to
perform the essential functions of Executive's position with reasonable
accommodation shall be made by an independent physician mutually selected by the
Company and Executive within five (5) days after the Company's written request
that Executive undergo an examination for such purpose. If the Company and
Executive are unable to agree within that time on the identity of the physician
who will perform such examination, then the Company and Executive each shall
immediately appoint a physician experienced in evaluating the disability at
issue, and the two (2) appointed physicians together shall within ten (10) days
after such appointment mutually select and appoint a third physician, similarly
qualified, to conduct such examination. If the physicians appointed by the
Company and Executive are unable to agree upon such third physician within such
ten (10) days, then the appointment of such third physician to examine Executive
shall occur in accordance with the procedural rules of JAMS referred to in
subsection 17(a) of this Agreement. The Company will treat any and all medical
information regarding Executive as confidential, in accordance with applicable
law. The Company and Executive acknowledge and agree that, should Executive have
a Disability as herein defined, continued employment of Executive would
constitute an undue hardship for the Company.
(ii) THE DETERMINATION THAT CAUSE EXISTS FOR SUCH TERMINATION.
For the purposes of this Agreement, the term "CAUSE" or "FOR CAUSE" shall mean
any of the following:
(A) Executive's material breach of any provision or
covenant of this Agreement, provided that Executive first shall have received
prior written notice from the Board of Directors expressly addressed to
Executive stating with specificity the nature of such material breach and
affording Executive a reasonable opportunity, as soon as practicable, but in no
event more than thirty (30) days, to initiate appropriate action to cure the
material breach complained of; or
(B) Executive's material failure or refusal to perform
Executive's duties as determined by the Board of Directors consistent with
Section 4, provided that Executive first shall have received prior written
notice from the Board of Directors expressly addressed to Executive stating with
specificity the nature of such material failure or refusal and affording
Executive a reasonable opportunity, as soon as practicable, but in no event more
than thirty (30) days, to initiate appropriate action to correct the acts or
omissions complained of; or
(C) Executive's material breach of any provision or
covenant of the Proprietary Information and Invention Assignment Agreement
referred to in Section 15 of this Agreement and attached hereto as EXHIBIT C; or
(D) Executive's conviction of, admission of guilt to, or
plea of NOLO CONTENDRE or similar plea (which, through lapse of time or
otherwise, is not subject to appeal) with respect to any felony; or
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(E) Executive's conviction of, admission of guilt to, or
plea of NOLO CONTENDERE or similar plea (which, through lapse of time or
otherwise, is not subject to appeal) with respect to any crime or offense of
theft, embezzlement, fraud, misappropriation of funds or other act of dishonesty
by Executive involving money or other property of the Company or any Subsidiary
or Affiliate committed after the date of this Agreement; or
(F) Executive's material violation of any Company
material policy, including, without limitation, any Company policy relating to
discrimination or harassment; or
(G) Executive's willful engagement in any violation of
law in Executive's capacity as CEO of the Company or any breach by Executive of
Executive's duty of loyalty to the Company.
(b) Voluntary Termination by Executive.
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Executive may terminate Executive's employment under this Agreement,
for Good Reason or without Good Reason, effective thirty (30) days after
Executive's delivery to the Company of written notice of such termination. For
the purposes of this Agreement, "GOOD REASON" means and shall exist if:
(i) The Company relocates its principal employee offices
outside the area within a radius of twenty five (25) miles from Irvine,
California, without the express consent of Executive, and Executive gives the
Company written notice of Executive's objection to such relocation within five
(5) days of being informed of such contemplated relocation; or
(ii) Without Executive's express consent, the Company
substantially reduces Executive's duties and responsibilities such that it
results in a material adverse reduction in Executive's position, authority or
responsibilities, and the Company fails to cure such reduction in duties and
responsibilities within twenty (20) days after Executive gives to the Company
written notice specifying the particular acts objected to and the specific cure
requested; or
(iii) The Company's material breach of any provision or
covenant of this Agreement, provided that the Company first shall have received
prior written notice from Executive stating with specificity the nature of such
material breach and affording the Company a reasonable opportunity, as soon as
practicable, but in no event more than thirty (30) days, to initiate appropriate
action to cure the material breach complained of.
(c) Merger, Consolidation, Reorganization or Sale of Assets.
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This Agreement shall not be terminated either (i) upon or by any
merger, consolidation, reorganization or similar transaction in which the
Company is not the surviving or resulting corporation or entity or (ii) upon or
by any transfer of all or substantially all of the assets of the Company. Upon
any such merger, consolidation, reorganization or similar transaction, or upon
any such transfer of assets, the terms and provisions of this Agreement shall be
binding on and shall inure to the benefit of the surviving or resulting
corporation or other entity or the corporation or other entity to which such
assets are so transferred.
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(d) Resignation as Officer and Director.
-----------------------------------
In the event of any termination under this Section 11 of Executive's
employment under this Agreement, Executive shall be deemed to have resigned
voluntarily as an officer and director of the Company or any of its Subsidiaries
or Affiliates if Executive was serving in such capacity at the time of
termination.
(e) Return of Company Documents.
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In the event of any termination of Executive's employment under this
Agreement, Executive shall before or on the date of such termination deliver to
the Company (and shall not keep in Executive's possession or deliver to anyone
else) all devices, records, data, notes, reports, proposals, lists, customer
lists, correspondence, specifications, drawings, blueprints, sketches,
materials, equipment, other documents or property or reproductions of any of the
aforementioned items belonging to the Company, its Subsidiaries, its Affiliates,
its successors or its assigns; provided, however, that Executive shall have the
right to retain in Executive's possession examples of Executive's documentary
work product that contains no Confidential Information (as defined in subsection
14(a) of this Agreement) as determined by the Board of Directors, such
determination of the Board of Directors constituting a pre-condition to such
right of retention. On the date of termination of Executive's employment with
the Company under this Agreement, Executive shall sign and deliver to the
Company the "TERMINATION CERTIFICATION" attached hereto as EXHIBIT A.
(f) Survival.
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The termination of Executive's employment under this Agreement shall
not affect the enforceability of Sections 12, 13, 14 and 15 of this Agreement.
12. Compensation Upon Termination.
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(a) Upon Termination Upon Death.
---------------------------
If Executive's employment is terminated upon Executive's death in
accordance with subsection 11(a) of this Agreement, then, in exchange for
execution of a general release and California Civil Code section 1542 waiver (a
copy of which is attached hereto as EXHIBIT B), the Company will pay Executive's
spouse, heirs, estate or personal representative, as the case may be, an amount
(the "DEATH SEVERANCE PAYMENT") equal to twelve (12) months' Base Salary in
effect on the date of termination plus reimbursement, under Section 10 of this
Agreement, for business expenses incurred by Executive up to the date of
termination. The Death Severance Payment will be paid upon receipt of the
executed general release and California Civil Code section 1542 waiver. The
Death Severance Payment is in addition to payment of Base Salary earned and
payment of any unused accrued vacation through and including the date of
termination.
If Executive's employment is terminated as a result of Executive's
death, then a PRO RATA portion of the Stock Options (determined as a percentage
of the Term actually served) shall immediately vest and remain exercisable for a
period of 12 months from the date of termination.
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(b) Upon Termination Upon Disability.
--------------------------------
If Executive's employment is terminated upon Executive's Disability in
accordance with subsection 11(a)(i) of this Agreement, then, in exchange for
execution of a general release and California Civil Code section 1542 waiver (a
copy of which is attached hereto as EXHIBIT B), the Company will pay Executive
an amount (the "DISABILITY SEVERANCE PAYMENT") equal to twelve (12) months' Base
Salary in effect on the date of termination plus reimbursement, under Section 10
of this Agreement, for business expenses incurred by Executive up to the date of
termination; provided, however, that, the Disability Severance Payment shall be
reduced by the sum of the amounts, if any, payable to Executive at or before the
time of the Disability Severance Payment under any disability benefit plan or
program of the Company. The Disability Severance Payment will be paid upon the
Company's receipt of the executed general release and California Civil Code
section 1542 waiver. The Disability Severance Payment is in addition to payment
of Base Salary earned and payment of any unused accrued vacation through and
including the date of termination.
If Executive's employment is terminated as a result of Executive's
Disability, then a PRO RATA portion of the Stock Options (determined as a
percentage of the Term actually served) shall immediately vest and remain
exercisable for a period of 12 months from the date of termination.
(c) Upon Termination For Cause.
--------------------------
If the Company terminates Executive's employment For Cause in
accordance with subsection 11(a)(ii) of this Agreement, then Executive will
receive payment of Base Salary earned and payment of any unused accrued vacation
through and including the date of termination and reimbursement of expenses (the
"FOR CAUSE PAYMENT").
The For Cause Payment shall constitute Executive's sole right and
exclusive remedy in the event of such termination of Executive's employment, and
upon payment by the Company of the For Cause Payment, all other rights or
remedies otherwise available shall cease immediately, and the Company shall have
no further obligations to Executive under this Agreement, except that Executive
shall have the right to exercise all benefits that have vested as of the date of
termination to which Executive is entitled under any compensation or employee
benefit plan of the Company in accordance with the terms and provisions of such
compensation or employee benefit plan, all other documents and agreements that
give rise to or otherwise govern such vested benefits and all applicable laws
and regulations.
Upon any termination of Executive's employment For Cause, all Stock
Options shall cease vesting and any vested Stock Options shall immediately be
terminated and cancelled and shall not be or become exercisable after the date
of such termination.
(d) Upon Voluntary Termination by Executive.
---------------------------------------
If Executive voluntarily terminates Executive's employment in
accordance with subsection 11(b) of this Agreement for Good Reason, then, in
exchange for execution of a general release and California Civil Code section
1542 waiver (a copy of which is attached hereto as EXHIBIT B), the Company will
pay Executive an amount (the "GOOD REASON VOLUNTARY TERMINATION SEVERANCE
PAYMENT") equal to Base Salary in effect on the date of termination, FOR ALL
MONTHS OTHERWISE REMAINING IN THE TERM NOTWITHSTANDING SUCH TERMINATION, plus
reimbursement, under Section 10 of this Agreement, for business expenses
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incurred by Executive up to the date of termination. The Good Reason Voluntary
Termination Severance Payment will be paid upon the Company's receipt of the
executed general release and California Civil Code section 1542 waiver. The Good
Reason Voluntary Termination Severance Payment is in addition to payment of base
salary earned and payment of any unused accrued vacation through and including
the date of termination. Upon any termination by Executive for Good Reason, all
Stock Options shall immediately vest and shall be exercisable for a period of 12
months from the date of termination.
If Executive voluntarily terminates Executive's employment in
accordance with subsection 11(b) of this Agreement WITHOUT Good Reason, then
Executive will receive payment of Base Salary earned and payment of any unused
accrued vacation through and including the date of termination (the "WITHOUT
GOOD REASON VOLUNTARY TERMINATION SEVERANCE PAYMENT"). Upon any termination by
Executive without Good Reason, all Stock Options shall cease vesting and only
Stock Options vested as of the date of termination shall be and remain
exercisable for 30 days from the date of termination.
In either event, the Good Reason Voluntary Termination Severance
Payment or the Without Good Reason Voluntary Termination Severance Payment, as
the case may be, shall constitute Executive's sole right and exclusive remedy in
the event of such termination of Executive's employment, and upon payment by the
Company of either the Good Reason Voluntary Termination Severance Payment or the
Without Good Reason Voluntary Termination Severance Payment, as the case may be,
all other rights or remedies otherwise available shall cease immediately, and
the Company shall have no further obligations to Executive under this Agreement,
except that Executive shall have the right to exercise all benefits that have
vested as of the date of termination to which Executive is entitled under any
compensation or employee benefit plan of the Company in accordance with the
terms and provisions of such compensation or employee benefit plan, all other
documents and agreements that give rise to or otherwise govern such vested
benefits and all applicable laws and regulations.
(e) Upon Termination Other Than Upon Death or Disability or For
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Cause or Upon Voluntary Termination.
-----------------------------------
If Executive's employment is terminated other than pursuant to
subsections 11(a), 11(a)(i), 11(a)(ii) or 11(b) of this Agreement, then, in
exchange for execution of a general release and California Civil Code section
1542 waiver (a copy of which is attached hereto as EXHIBIT B), the Company will
pay Executive an amount (the "WITHOUT CAUSE SEVERANCE PAYMENT") equal to Base
Salary in effect on the date of termination, FOR ALL MONTHS OTHERWISE REMAINING
IN THE TERM NOTWITHSTANDING SUCH TERMINATION, plus reimbursement, under Section
10 of this Agreement, for business expenses incurred by Executive up to the date
of termination. The Without Cause Termination Severance Payment will be paid
upon the Company's receipt of the executed general release and California Civil
Code section 1542 waiver. The Without Cause Termination Severance Payment is in
addition to payment of Base Salary earned and payment of any unused accrued
vacation through and including the date of termination.
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The Without Cause Severance Payment shall constitute Executive's sole
right and exclusive remedy in the event of such termination of Executive's
employment, and upon payment by the Company of the Without Cause Severance
Payment, all other rights or remedies otherwise available shall cease
immediately, and the Company shall have no further obligations to Executive
under this Agreement, except that Executive shall have the right to exercise all
benefits that have vested as of the date of termination to which Executive is
entitled under any compensation or employee benefit plan of the Company in
accordance with the terms and provisions of such compensation or employee
benefit plan, all other documents and agreements that give rise to or otherwise
govern such vested benefits and all applicable laws and regulations.
Upon any termination of Executive's employment pursuant to this
Section, all Stock Options shall immediately vest and remain exercisable for a
period of 12 months from the date of termination.
(f) Exclusivity of Payments.
-----------------------
Upon termination of Executive's employment under this Agreement,
Executive shall not be entitled to any severance payment or severance benefit
from the Company other than the payments and benefits provided in this Section
12.
(g) Withholding of Taxes; Tax Reporting.
-----------------------------------
The Company may withhold from any amount payable under this Agreement
all such federal, state, city and other taxes and may file with appropriate
governmental authorities all such information, returns or other reports with
respect to the tax consequences of any amount payable under this Agreement as
may in the Company's reasonable judgment be required.
(h) Section 280G.
------------
Anything in this Agreement to the contrary notwithstanding, Executive's
payments and benefits under this Agreement and all other arrangements or
programs shall not, in the aggregate, exceed the maximum amount that may be paid
to Executive without triggering golden parachute penalties under Section 280G
and related provisions of the Internal Revenue Code of 1986, as amended, as
determined in good faith by the Company's independent auditors. If Executive's
benefits must be cut back to avoid triggering such penalties, then Executive's
benefits shall be cut back in the priority order that Executive designates or,
if Executive fails to designate promptly such an order, in the priority order
that the Company designates. Executive and the Company shall cooperate
reasonably with each other in connection with any administrative or judicial
proceeding about the existence or amount of golden parachute penalties on
payments or benefits that Executive receives from the Company. This Section
12(h) shall not be applicable if the Executive's payments and benefits
triggering the golden parachute penalties of Code Section 280G were approved by
the shareholders of the Company as required by Code Section 280G(b)(5)(b), and
the Company shall undertake its reasonable best efforts to obtain such
shareholder approval.
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13. Covenants Not to Compete.
-------------------------
(a) Covenants.
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Throughout the Term, Executive shall not, directly or indirectly, as an
employee, agent, advisor, independent contractor, officer, director, manager,
member, partner, owner, consultant or otherwise, (i) compete with the Company or
with any of its Subsidiaries or Affiliates, (ii) solicit for employment or any
other capacity any employee or executive of the Company or of any of its
Subsidiaries or Affiliates, (iii) induce or attempt to induce any employee of
the Company or of any of its Subsidiaries or Affiliates to leave the employ of
the Company or of any of its Subsidiaries or Affiliates, (iv) solicit any actual
or prospective customer of the Company or of any of its Subsidiaries or
Affiliates for any business that competes directly or indirectly with the
Company or any of its Subsidiaries or Affiliates or (v) interfere with, disrupt
or attempt to disrupt the relationship, contractual or otherwise, between any
customer, client, licensor, licensee, supplier, consultant or employee of the
Company or of any of its Subsidiaries or Affiliates. An activity competitive
with an activity engaged in by the Company or by any of its Subsidiaries or
Affiliates shall include, without limitation, becoming an employee, agent,
advisor, independent contractor, officer, director, manager, member, partner,
owner, consultant or other assistant or representative of, or being an investor
to any extent or in any manner in, any entity or person engaged in any business
that is competitive with the business of the Company. Notwithstanding any of the
foregoing, for the purposes of this Agreement, the beneficial ownership by
Executive of less than a one percent (1.0%) interest in any publicly-traded
entity shall not be deemed to be competition with the Company or with any of its
Subsidiaries or Affiliates.
(b) Solicitation of Employees.
-------------------------
Executive agrees that, for a period of one (1) year after the
termination of Executive's employment with the Company, Executive shall not
employ or offer to employ or solicit the employment of any employee of the
Company or of any of its Subsidiaries or Affiliates, either for Executive's own
purpose or for any other person or entity. During the period of one (1) year
after termination, Executive further agrees that Executive shall not divulge any
of the Company's Confidential Information (as that term is defined in Section 14
of this Agreement) to solicit, directly or indirectly, employees, contractors,
licensees or customers of the Company or of any of its Subsidiaries or
Affiliates, either for Executive's own purpose or for any other person or
entity.
(c) Enforceability.
--------------
The covenants set forth in subsections 13(a) and (b) of this Agreement
shall be construed as an agreement independent of any other provision of this
Agreement, and the existence of any claim or cause of action of Executive
against the Company or against any of its Subsidiaries or Affiliates, whether
predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement by the Company of any of such covenants. Executive expressly waives
any right to assert inadequacy of consideration as a defense to enforcement of
any of the provisions of this Section 13. Executive and the Company hereby
acknowledge that it is the desire and intent of Executive and the Company, and
Executive and the Company hereby agree, that the terms and provisions of this
Section 13 shall be enforced to the fullest extent permissible under the laws
and public policies applied in each jurisdiction in which enforcement is sought.
-12-
14. Covenants Regarding Confidentiality.
-----------------------------------
(a) Covenants.
---------
Executive acknowledges and agrees that Executive has been and will
continue to be entrusted with trade secrets and proprietary information
regarding, without limitation, Inventions (as defined in the Proprietary
Information and Invention Assignment Agreement attached hereto as EXHIBIT C),
the products, processes, know-how, designs, formulas, marketing techniques and
future business plans, customer lists and information concerning the identity,
needs and desires of actual and potential customers of the Company, its
Subsidiaries or its Affiliates, competitive analyses, pricing policies, the
substance of agreements with customers and others, marketing or concession
arrangements, servicing and training programs and arrangements, developmental or
experimental work, improvements, inventions, formulas, ideas, designs, computer
programs, data bases, other original works of authorship, financial information
or other subject matter pertaining to any business of the Company or any of its
Subsidiaries, Affiliates, clients, consultants or licensees and all documents
embodying such confidential information (collectively, "CONFIDENTIAL
INFORMATION"), all of which derives significant economic value from not being
generally known by others outside the Company. In connection with the foregoing,
Executive specifically acknowledges (a) that the customer lists of the Company
are confidential and not readily known by the Company's competitors, (b) that
such customers are particularly important to the Company's business, (c) that
business relationships between such customers and the Company normally would
continue unless interfered with and (d) that solicitation of such customers by
Executive, following termination of Executive's employment under this Agreement,
would cause injury to the Company's business.
During the Term and for a period of two (2) years thereafter, except
for the sole benefit of the Company or with the express written consent of the
Board of Directors, Executive shall not at any time, directly or indirectly,
disclose to or permit to be known by any person, firm, corporation or other form
of entity any Confidential Information acquired by Executive during the course
of or as an incident to Executive's employment under this Agreement, or as a
result of Executive's association with the Company or any of its Subsidiaries or
Affiliates, whether or not relating to the Company or any of its Subsidiaries or
Affiliates, the directors of the Company or its Subsidiaries or Affiliates, any
client of the Company or of any of its Subsidiaries or Affiliates, or any
corporation, partnership or other entity owned or controlled, directly or
indirectly, by any of the foregoing, or in which any of the foregoing has a
beneficial interest, including, without limitation, the business affairs of each
of the foregoing, except as required by law to be disclosed (in which case
Executive first shall give the Company written notice of such requirement
reasonably in advance of such anticipated required disclosure and shall assist
the Company in obtaining a protective order or confidential treatment to the
extent requested by the Company). Notwithstanding any of the foregoing, for the
purposes of this Agreement, the term "CONFIDENTIAL INFORMATION" shall not
include (i) any information that was in the public domain at the time of
disclosure to Executive or that comes lawfully into the public domain without
breach of this Agreement, (ii) was or is rightfully in Executive's possession
prior to disclosure by the Company or (iii) was or is received by Executive from
a third party having a right to disclose such information without restriction
and without breach of any agreement with the Company.
-13-
(b) Enforceability.
--------------
The covenants set forth in subsection 14(a) of this Agreement shall be
construed as an agreement independent of any other provision of this Agreement,
and the existence of any claim or cause of action of Executive against the
Company, whether predicated on this Agreement or otherwise, shall not constitute
a defense to the enforcement by the Company of any of such covenants. Executive
expressly waives any right to assert inadequacy of consideration as a defense to
enforcement of any of the provisions of this Section 14. Executive and the
Company hereby acknowledge that it is the desire and intent of Executive and the
Company, and Executive and the Company hereby agree, that the terms and
provisions of this Section 14 shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought.
15. Proprietary Information and Invention Assignment Agreement.
----------------------------------------------------------
As a material inducement to the Company to execute and deliver to
Executive this Agreement, and as a condition to the enforceability of this
Agreement against the Company, concurrently with Executive's execution and
delivery to the Company of this Agreement, Executive shall execute and deliver
to the Company a Proprietary Information and Invention Assignment Agreement
substantially in the form attached hereto as EXHIBIT C (the "PROPRIETARY
INFORMATION AND INVENTION ASSIGNMENT AGREEMENT").
16. Unique Nature of Services; Right to Injunction.
----------------------------------------------
Executive acknowledges and agrees that Executive's services under this
Agreement are unique and of extraordinary character and that it would be
extremely difficult or impossible for the Company to replace such services or
determine the damages that would result from the loss of such services.
Executive therefore agrees that the Company's remedies at law are inadequate in
the event of any breach of this Agreement by Executive, and Executive consents
to the issuance of a temporary restraining order, preliminary and permanent
injunction and other appropriate relief to restrain any actual or threatened
violation of this Agreement, without limiting any of the other remedies that the
Company may have at law or in equity. If Executive violates or threatens to
violate any of the provisions of this Agreement, then, in addition to all other
rights and remedies that the Company may have under the terms of this Agreement
and all applicable law, the Company shall have the right to seek and obtain
equitable relief in the form of a temporary restraining order and permanent
injunction against Executive and any corporation, business, firm, partnership,
limited-liability company, association, consortium, group, other form of entity
or individual participating in such violation or threatened violation, without
the proof of actual damages.
17. Mediation, Arbitration and Consent to Jurisdiction.
--------------------------------------------------
(a) Mediation and Arbitration.
-------------------------
(i) If a dispute, claim or controversy arises between the
Company and Executive with respect to any provision of this Agreement, or the
interpretation or performance of this Agreement, and such dispute, claim or
controversy is declared by written notice from one party hereto to the other,
then the Company and Executive shall negotiate in good faith toward resolution
of such dispute, claim or controversy. If such dispute, claim or controversy
cannot be resolved within a period of sixty (60) days (or such shorter period as
-14-
may be specified herein) after such notice is given, then the Company and
Executive first shall endeavor to settle such dispute, claim or controversy in
an amicable manner by mediation administered by JAMS under JAMS' employment
dispute resolution mediation rules, before resorting to arbitration. Thereafter,
any remaining unresolved dispute, claim or controversy arising out of or
relating to this Agreement, or the breach thereof, shall be settled by binding
arbitration in Orange County, California, under the laws of the State of
California, in accordance with the binding arbitration rules of JAMS unless and
except if in conflict with this Agreement. The arbitration tribunal shall
consist of one (1) arbitrator. The determination of the arbitrator shall be
conclusive and binding on the Company and Executive. The identity of the
arbitrator shall be mutually acceptable to both the Company and Executive, and
he or she shall preside and decide the dispute, claim or controversy unless the
Company and Executive agree in writing to the contrary. If the Company and
Executive fail to agree on the identity of the arbitrator, then the Company and
Executive shall accept an arbitrator appointed by JAMS.
(ii) The award of the arbitrator may be, alternatively or
cumulatively, for monetary damages, an order requiring the performance of
non-monetary obligations (including specific performance) or any other
appropriate order or remedy. The arbitrator may issue interim awards and order
provisions or measures that should be taken in order to preserve the respective
rights of the Company and Executive.
(iii) Any award rendered by the arbitrator shall be in
writing, setting forth the reasons for the award, and shall be the final
disposition on the merits. Judgment upon the award may be rendered in any court
having jurisdiction, or application may be made to any such court having
jurisdiction, or application may be made to any such court for a judicial
acceptance of the award and an order of enforcement, as the case may be. The
Company and Executive waive any right that they may enjoy under any federal or
state law to apply to any federal or state court for relief from the provisions
of this paragraph or from any decision of the arbitrator made before the award.
THE COMPANY AND EXECUTIVE ACKNOWLEDGE AND AGREE THAT EACH OF THEM IS WAIVING THE
RIGHT TO A JURY TRIAL.
(iv) The party that prevails in the arbitration shall be
entitled to recover from the party that loses in the arbitration all expenses,
including, without limitation, reasonable attorneys' fees and expenses, incurred
in ascertaining such party's rights and in preparing to enforce and/or defend
and in enforcing and/or defending such party's rights under this Agreement.
(v) The procedure set forth in this subsection 17(a) shall be
the exclusive remedy available to the Company and Executive to resolve any
dispute, claim or controversy arising under this Agreement or out of Executive's
employment with the Company.
(b) Consent to Jurisdiction.
-----------------------
Notwithstanding anything to the contrary contained in subsection 17(a)
of this Agreement, each of the Company and Executive hereby irrevocably submits
to the exclusive jurisdiction of the Superior Court of the State of California,
Orange County, or to the exclusive jurisdiction of the United States District
Court, Central District of California (Southern Division), only for the purposes
of either (i) obtaining relief not within the jurisdiction or powers of the
arbitrator, in connection with any suit, action or other proceeding brought by
any party hereto or any of its respective heirs, successors or assigns, as
applicable, arising out of or related to Sections 13, 14, 15, and 16 of this
Agreement or (ii) the enforcement of the arbitrator's determination as provided
in subsection 17(a) of this Agreement; and each of the Company and Executive
-15-
agrees not to assert by way of motion, as a defense or otherwise, in any such
suit, action or proceeding, any claim that such party hereto is not subject to
the jurisdiction of the above-named courts, that the suit, action or proceeding
is brought in an inconvenient forum, that the venue of the suit, action or
proceeding is improper or that this Agreement may not be enforced in or by such
courts. Executive agrees that all actions and proceedings permitted to be
instituted under this Agreement by Executive or Executive's successors or
assigns in a forum other than arbitration arising out of or related to this
Agreement or the transactions contemplated by this Agreement shall be commenced
only in the courts having a situs in Orange County, California.
18. Representations, Warranties and Covenants of Executive.
------------------------------------------------------
In order to induce the Company to enter into and perform this
Agreement, Executive represents and warrants that Executive is not a party to
any contract, agreement or understanding that prevents or prohibits Executive
from entering into this Agreement or fully performing all of Executive's
obligations under this Agreement and that Executive's performance of all of the
terms of this Agreement and Executive's employment by the Company does not and
will not breach any agreement to keep in confidence proprietary information
acquired by Executive in confidence or in trust before Executive's employment by
the Company.
19. Voluntary Execution and Delivery; Legal Counsel.
------------------------------------------------
Executive acknowledges that Executive has read carefully this Agreement
and understands its terms and that Executive voluntarily is executing and
delivering this Agreement. Executive acknowledges that the Company's legal
counsel is not legal counsel to Executive and has not advised Executive in any
way in connection with or regarding this Agreement. Executive represents,
warrants and acknowledges to the Company that Executive has been given and had
the opportunity to be represented by independent legal counsel in connection
with this Agreement and has consulted with such legal counsel or has waived
Executive's right to do so.
20. Miscellaneous.
-------------
(a) Governing Law.
-------------
The validity, construction, interpretation and enforceability of this
Agreement shall be determined and governed by the laws of the State of
California. Notwithstanding the foregoing, if any law or set of laws of the
State of California requires or otherwise dictates that the laws of another
state or jurisdiction be applied in any proceeding involving this Agreement,
then such law or laws of the State of California shall be superseded by this
subsection, and the remaining laws of the State of California nonetheless shall
be applied in such proceeding.
(b) Severability.
------------
If any court of competent jurisdiction determines that any provision of
this Agreement is, but for the provisions of this subsection, illegal or void as
against public policy, for any reason, then such provision shall automatically
be amended or modified to the extent (but only to the extent) necessary to make
it sufficiently narrow in scope, time and geographic area that such court shall
-16-
determine it not to be illegal or void as against public policy. If any such
provision cannot be amended or modified to the extent provided in the
immediately-preceding sentence hereof, then such provision shall be severed from
this Agreement. In either event, all other remaining terms and provisions of
this Agreement and of each other agreement entered into pursuant to this
Agreement shall remain in full force and effect and shall remain binding on the
Company and Executive as if such severed provision had not been contained
herein. Any such amendment, modification or severance shall apply only with
respect to the operation of this Agreement in the particular jurisdiction in
which such determination of illegality or unenforceability is made.
(c) Notices.
-------
Any notice or communication required or permitted under this Agreement
shall be in writing and shall be deemed to have been received by the party to
whom such notice or communication is addressed (i) upon delivery, if delivered
personally, or (ii) upon receipt by the TRANSMITTING party, if transmitting such
notice or communication via telex or facsimile machine, of an acknowledgment of
receipt of such notice or communication transmitted by the receiving party to
the transmitting party via telex or facsimile machine, or (iii) twenty four (24)
hours after deposited, prepaid, in a Fedex or similar depository for expedited
overnight delivery or (iv) ten (10) business days after deposited in the United
States mail, registered or certified, postage prepaid, return receipt requested,
addressed as follows:
If to the Company: XXXX.XXX, INC.
Attn: Secretary
0000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
FAX: (000) 000-0000
If to Executive: 0 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
FAX: (000) 000-0000
or to such other persons or addresses as either of the Company or Executive from
time to time may provide in writing to each other.
(d) Waiver.
------
No failure on the part of either party hereto to exercise, and no delay
in exercising, any right, power or remedy under this Agreement shall operate as
a waiver thereof or as a waiver of any other right, power or remedy under this
Agreement or the performance of any obligation under this Agreement of either
party hereto; and no single or partial exercise by either party hereto of any
right, power or remedy under this Agreement shall preclude any other or further
exercise thereof or the exercise of any other right, power or remedy.
-17-
(e) Amendment and Modification.
--------------------------
Subject to applicable law and upon the approval of the Board of
Directors, this Agreement may be amended, modified and supplemented with respect
to any of the terms of this Agreement by written agreement by and between the
Company and Executive. The provisions of this Agreement shall not be extended,
varied, changed, modified, amended or supplemented other than by an agreement in
writing approved by the Board of Directors and executed by both a duly
authorized officer of the Company and Executive.
(f) Assignability and Binding Effect.
--------------------------------
This Agreement shall inure to the benefit of and be binding on the
heirs, executors, administrators, successors and legal representatives of
Executive and shall inure to the benefit of and be binding on the Company and
its successors and assigns, but the obligations of Executive under this
Agreement may not be delegated by any purported assignment of this Agreement by
Executive.
(g) Captions and Headings.
---------------------
The captions and headings used in this Agreement are for convenience of
reference only and do not constitute a part of this Agreement and shall not be
deemed to limit, characterize or in any way affect any term or provision of this
Agreement, and all terms and provisions of this Agreement shall be enforced and
construed as if no captions or headings appeared in this Agreement.
(h) Interpretation and Construction.
-------------------------------
If any provision of this Agreement requires interpretation by an
arbitrator or court, then such interpretation or construction shall not apply a
presumption that the terms hereof shall be more strictly construed against the
Company by reason of the rule of construction that a document is to be construed
more strictly against the person or agent of such person who prepared the same,
it being hereby acknowledged and agreed by both the Company and Executive that
both of them participated in the negotiation and preparation of this Agreement.
(i) Further Assurances.
------------------
Each of the Company and Executive shall execute and deliver all such
further instruments and take such other and further actions as reasonably may be
necessary or appropriate to carry out the provisions of this Agreement.
(j) Limitations on Actions.
----------------------
Executive agrees not to commence any action arising out of or in any
way related to this Agreement or to Executive's employment with the Company more
than six (6) months after the termination of Executive's employment. Executive
agrees that six (6) months is a reasonable amount of time in which to commence
any such action and expressly waives any statute of limitations to the contrary.
-18-
(k) Entire Agreement and Binding Effect.
-----------------------------------
This Agreement and the Proprietary Information and Invention Assignment
Agreement (collectively, the "AGREEMENTS") constitute the entire agreement of
the parties hereto and supersedes all prior understandings, agreements or
representations by or between the parties hereto, whether oral or in writing,
that may have been related to the subject matter of the Agreements in any
manner. No restrictions, promises, warranties, covenants or undertakings exist
relating to the subject matter of the Agreements other than those expressly
provided for in the Agreements.
(l) Counterpart Execution.
---------------------
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original of this Agreement, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the Company and Executive have executed this
Agreement to be effective as of the date first written above.
THE "COMPANY": "EXECUTIVE":
XXXX.XXX, INC.,
a Delaware corporation /S/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxxxx
By: /S/ Xxx X. Xxxxxx
--------------------------------------
Xxx X. Xxxxxx,
Chairman
-19-
EXHIBIT A
---------
TERMINATION CERTIFICATION
-------------------------
I hereby certify that I do not have in my possession, and I have not
failed to return to the Company (as defined below), devices, records, data,
notes, reports, proposals, lists, customer lists, correspondence,
specifications, drawings, blueprints, sketches, materials, equipment, other
documents or property or reproductions of any of the aforementioned items
belonging to XXXX.XXX, INC., a Delaware corporation ("IJNT"), its Subsidiaries,
its Affiliates, its successors or its assigns (together, collectively, the
"COMPANY").
I hereby further certify that I have complied in all material respects
with all of the terms of that certain Employment Agreement, effective as of June
16, 2000, by and between IJNT and me (the "EMPLOYMENT Agreement"). I further
certify that I have complied in all material respects with all of the terms of
that certain Proprietary Information and Invention Assignment Agreement,
effective as of June 16, 2000, by and between IJNT and me, including the
reporting of inventions and original works of authorship conceived or made by me
(solely or jointly with others).
I further certify that I will comply in all material respects with all
provisions of the Employment Agreement and the Proprietary Information and
Invention Assignment Agreement that survive the termination of my employment
with the Company, including, without limitation, Sections 12, 13, 14, and 15 of
the Employment Agreement.
Dated:
----------------------- -------------------------------------
Xxxxxxx X. Xxxxxxxxx
EXHIBIT B
---------
WAIVER AND RELEASE
------------------
For full and valuable consideration, I, Xxxxxxx X. Xxxxxxxxx, hereby
agree to the following Waiver and Release provision relating to my employment
and its termination with XXXX.XXX, INC. (the "COMPANY"):
I hereby release and discharge the Company and its divisions,
affiliates, parents, subsidiaries, predecessor and successor corporations, and
the past and present directors, officers, management committees, shareholders,
agents, servants, employees, representatives, administrators, partners, general
partners, managing partners, limited partners, benefit plan fiduciaries and
administrators, assigns, heirs, successors or predecessors in interest,
adjusters and attorneys, from all rights, claims, causes of action and damages,
both known and unknown, in law or in equity, concerning and/or arising out of my
employment with the Company before the date of this Waiver and Release that I
now have, or ever had, including, without limitation, all rights, claims, causes
of action or damages arising under Title VII of the Civil Rights Act of 1964,
the Age Discrimination in Employment Act of 1967, the Older Workers' Benefit
Protection Act, Employee Retirement Income Security Act, the Americans with
Disabilities Act, the California Fair Employment and Housing Act and the
California Labor Code.
I specifically waive and relinquish all rights and benefits afforded by
California Civil Code section 1542. I understand and acknowledge the
significance and consequences of this specific waiver of section 1542.
California Civil Code section 1542 states 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.
Dated:
----------------------- -------------------------------------
Xxxxxxx X. Xxxxxxxxx
EXHIBIT C
---------
FORM OF PROPRIETARY INFORMATION AND
-----------------------------------
INVENTION ASSIGNMENT AGREEMENT
------------------------------
