EXHIBIT 10.8
EMPLOYEE AGREEMENT
This employment agreement is made this 19th day of September, 2004 by and
between UGS Corp., located at 0000 Xxxxxxx Xxxxxxx, Xxxxx, XX 00000, and Xxx
Xxxxxx ("Xxxxxx"), who resides at 00 X. Xxxxxxxx Xxxx Xxxxxx, Xxx Xxxxxxxxx, XX
00000.
Whereas, UGS Corp. wishes to employ Xxxxxx as Executive Vice President of Global
Sales Operations; and
Whereas, Xxxxxx acknowledges the importance to UGS Corp. (and any of its
affiliates) (the "Company") of protecting its confidential information and other
legitimate interests;
Now, therefore, in consideration of the parties' mutual promises and, in
particular, of Milton's offer of employment by UGS, of his being granted access
to trade secrets and other confidential information of the Company, of the
Company's promise to provide not less than 30 days' notice, or pay in lieu of
notice, at Milton's then-current base rate of pay, in the event the Company
initiates termination of his employment, and for other good and valuable
consideration, the receipt and sufficiency of which each party hereby
acknowledges, the Company and Xxxxxx agree as follows:
1. Position and Compensation
Xxxxxx will serve as the Company's Executive Vice President of Global
Sales Operations. His initial base annual salary will be $400,000 to be
paid in twenty-four (24) semimonthly payments. In addition to base salary,
Xxxxxx will be eligible for an annual performance based incentive
opportunity equal to 80% of annual salary. This bonus will be prorated at
4I12ths for 2004. Xxxxxx will be eligible for an additional bonus amount
if the company exceeds its 2004 objectives. Xxxxxx will also be granted
650,000 shares of UGS stock options. Furthermore, Xxxxxx will have the
opportunity to participate in UGS benefit programs and paid vacation of
four weeks per year.
2. Conduct of Employment
Xxxxxx agrees that, during employment, he will devote his full business
time and his best efforts, business judgment, skill and knowledge
exclusively to the advancement of the business and interests of the
Company and to the discharge of his duties and responsibilities for it. He
agrees to comply with all policies, practices and procedures of the
Company, as these may be changed by the Company from time to time.
3. Involuntary Termination
In the event that Milton's employment with UGS is involuntarily terminated
within two years of his hire date, for reason other than for "Cause", he
will be entitled to a lump sum amount equal to one annual base salary
payable within 14 days of his separation. For the purpose of this
agreement, "Cause" is defined as (a) material breach of any agreement
entered into between Xxxxxx and UGS; (b) gross negligence or willful
misconduct in the
performance of his duties and responsibilities; (c) material failure or
refusal to faithfully, diligently, and competently perform the usual and
customary duties associated with his position; (d) material failure to
follow UGS' policies, directives or orders applicable to UGS employees
holding comparable positions; (e) intentional destruction or theft of UGS
property or falsification of UGS documents; (f) conviction of a felony or
any crime involving moral turpitude; or (g) other neglect, misconduct of
conduct that is materially harmful to the operation, business, interest or
reputation of UGS, which neglect, if susceptible to cure, remains uncured
after written notice specifying such neglect, misconduct or conduct. If,
at any time, UGS adopts a severance policy that provides a greater benefit
than the one described in this paragraph, then Xxxxxx will be eligible for
the greater benefit.
4. Disclosure and Use of Confidential Information; Documents
a. "Confidential Information" means all information which has not been
made public concerning the Company's business, including but not
limited to: (a) all proprietary information of the Company,
including but not limited to the products and services, technical
data, methods, processes, know-how, developments, inventions, and
formulae of the Company; (b) the development, research, testing,
marketing and financial activities and strategic plans of the
Company; (c) the costs and sources of supply of the Company's
products and services; (d) the identity and needs of the customers,
prospective customers and subcontractors of the Company, customer
lists and customer and sales records, the identity of contacts at
purchasers, any list of purchasers, and any list of sales
transactions and/or prices charged by the Company); (e) the people
and organizations with whom the Company has business relationships
and the nature of those relationships; and (f) any information that
the Company may receive or has received from customers,
subcontractors, suppliers or others, with any understanding, express
or implied, that the information would not be disclosed. Xxxxxx
agrees that all Confidential Information is and shall remain the
sole and exclusive property of the Company and that, except as
required for the proper performance of his regular duties for the
Company, as expressly authorized in writing in advance by an officer
of the Company or the designee of an officer, or as required by
applicable law, he will never, directly or indirectly, use or
disclose any Confidential Information. Xxxxxx understands and agrees
that this restriction shall continue to apply after the termination
of his employment or this Agreement. He agrees to provide prompt
notice to the Company of any required disclosure of Confidential
Information sought pursuant to subpoena, court order or any other
legal requirement and to provide the Company a reasonable
opportunity to seek protection of the Confidential Information prior
to any such disclosure.
x. Xxxxxx agrees that all documents, records and files, in any media of
whatever kind and description, relating to the business of the
Company and any copies (including without limitation electronic)
(the "Documents" and each individually, a "Document"), whether or
not prepared by him, shall be the sole and exclusive property of the
Company, that he will not copy or remove any Documents, or copies,
from the premises of the Company except as required for the proper
-2-
performance of his regular duties and that he will safeguard, and
return to the Company immediately upon termination of his
employment, and at such other times as may be specified by the
Company, all Documents and all other property of the Company, and
all documents, records and files of their customers, subcontractors
and suppliers ("Third-Party Documents") and all other property of
such customers, subcontractors and suppliers, then in his possession
or control. He also agrees that, upon request of an officer of the
Company, he will disclose all passwords pertinent to enable the
Company to obtain access to the Documents and Third-Party Documents.
5. Disclosure and Use of Intellectual Property
a. "Intellectual Property" means inventions, discoveries, developments,
methods, processes, compositions, works (including software),
designs, concepts, know-how and ideas (for all such items, whether
or not patentable or copyrightable or constituting trade secrets)
conceived, made, created, developed or reduced to practice by Xxxxxx
(in any case, whether alone or with others and whether or not during
normal business hours or on or off Company premises) during his
employment (including prior to this Agreement) that relate in any
way to the business, products or services of the or to any
prospective activity of the Company or which make use of the
Confidential Information or of facilities or equipment of the
Company. Xxxxxx shall maintain accurate and complete contemporaneous
records of, and shall immediately and fully disclose and deliver to
the Company, all Intellectual Property. Xxxxxx attaches hereto as
Exhibit A a list describing all inventions, original works of
authorship, developments, improvements, and trade secrets made by
him prior to his employment with the Company, which belong to him
and which are not assigned to the Company hereunder (collectively
referred to as "Prior Inventions"); and, if no such list is
attached, Xxxxxx represents and warrants that there are no such
Prior Inventions.
x. Xxxxxx hereby assigns and agrees in the future to assign to the
Company (or as otherwise directed by the Company) his full right,
title and interest in and to all Intellectual Property. If he
incorporates into any of the Intellectual Property any Prior
Inventions, he hereby grants the Company an irrevocable, worldwide,
fully paid-up, royalty-free, non-exclusive license, with the right
to sublicense through multiple tiers, to make, use, sell, improve,
reproduce, distribute, perform, display, transmit, manipulate in any
manner, create derivative works based upon, and otherwise exploit or
utilize in any manner the Prior Invention(s) included in the
Intellectual Property. Xxxxxx agrees to provide, at the Company's
request, all further cooperation which the Company determines is
necessary or desirable to accomplish the complete transfer of the
Intellectual Property and all associated rights to the Company, its
successors, assigns and nominees, including without limitation
executing of any documents pertaining to the Intellectual Property.
To the extent that Xxxxxx cannot assign and transfer any of his full
right, title, and interest in the Intellectual Property then he
hereby grants the Company an irrevocable, worldwide, fully paid-up,
royalty-free, exclusive license, with the right to sublicense
through multiple tiers, to make, use, sell, improve, reproduce,
-3-
distribute, perform, display, transmit, manipulate in any manner,
create derivative works based upon_, and otherwise exploit or
utilize in any manner the Intellectual Property
x. Xxxxxx agrees that all copyrightable works that he creates,
including without limitation computer programs and documentation,
shall be considered "work made for hire" and shall, upon creation,
be owned exclusively by the Company.
x. Xxxxxx further agrees that he will assign, deliver and communicate
to the Company any know-how, facts and materials arising from or
relating to said Intellectual Property including without limitation:
(i) all simulations, prototypes, and other embodiments of the
Intellectual Property; (ii) all drawings, blueprints, calculations,
research plans and results, lab notes, workbooks and other records
and written materials that relate to the Intellectual Property or
that embody or record any know-how pertaining to the Intellectual
Property; (iii) all files, documents and communications pertaining
to the Intellectual Property; and (iv) evidence for patent
interference purposes or for other legal proceedings whenever
requested.
6. Non-Competition
Xxxxxx agrees that, during his employment and during the 12 month period
immediately following termination of his employment, he will not (a)
provide services, in any capacity, whether as an employee, independent
contractor or otherwise, whether with or without compensation for any of
the following named competitors of UGS: Dassault Systems; the part(s) of
IBM that work directly with Dassault Systems; Matrix One; PTC; Agile; SAP;
Oracle; Baan; or to perform duties anywhere in the world for any of the
distributors or resellers of the these named competitors' CAD and/or PLM
software products and services; (b) participate voluntarily with or
provide assistance or information to any person or entity that is involved
in (i) negotiations with UGS involving a contract or services to be
rendered by UGS; or (ii) a potential or existing business or legal dispute
with UGS, including, but not limited to, litigation, except as may be
required by law.
7. Non-Solicitation of Employees and Customers
x. Xxxxxx acknowledges that his access to Confidential Information and
to the Company's customers and his development of goodwill on behalf
of the Company with its customers during his employment would give
him an unfair competitive advantage , were he to leave employment
and begin competing with the Company or for its existing customers
and that he therefore is being granted access to Confidential
Information and the customers of the Company in reliance on his
agreement hereunder. Xxxxxx therefore agrees that, during his
employment and for the period of 24 months immediately following
termination (in the aggregate, the "Non-Solicitation Period'), he
will not solicit or encourage any customer of the Company to
terminate or diminish its relationship with the Company and he will
not seek to persuade any such customer to conduct with any
individual or entity
-4-
any business or activity which such customer conducts or could
conduct with the Company.
b. Acknowledging the strong interest of the Company in an undisrupted
workplace, Xxxxxx agrees that, during the Non-Solicitation Period,
he will not, and he will not assist any individual or entity to, (a)
hire or solicit for hiring any employee of the Company or seek to
persuade any employee of the Company to discontinue employment or
(b) solicit or encourage any independent contractor providing
services to the Company to terminate or diminish its relationship
with the Company.
8. Remedies and Enforcement
a. In signing this Agreement, Xxxxxx acknowledges that he has carefully
read and considered all the terms and conditions of this Agreement,
that he agrees without reservation that each of the restraints
contained herein is necessary for the reasonable and proper
protection of the goodwill, Confidential Information and other
legitimate interests of the Company in respect to subject matter,
length of time and geographic area; and that these restraints will
not prevent him from obtaining other suitable employment during the
period in which he is bound by these restraints. He also
acknowledges and agrees that, were he to breach any of the
provisions of this Agreement, the harm to the Company would be
irreparable. He therefore agrees that in the event of such a breach
or threatened breach the Company shall, in addition to any other
remedies available to them, have the right to obtain preliminary and
permanent injunctive relief against any such breach without having
to post bond. He further agrees that, in the event that any
provision of this Agreement shall be determined by any court of
competent jurisdiction to be unenforceable by reason of its being
extended over too great a time, too large a geographic area or too
great a range of activities, such provision shall be deemed to be
modified to permit its enforcement to the maximum extent permitted
by law.
b. In the event of any alleged breach of this Agreement, I hereby
consent and submit to the jurisdiction of the federal and state
courts in and of the state of Texas and, if different, of the
federal and state courts in and of the state in which I am then
employed. I agree to accept service of process by registered or
certified mail or the equivalent directed to his last known address
on the books of the Company or by whatever other means are permitted
by such court.
9. Duties to Previous Employers
Xxxxxx will not disclose to, or use on behalf of the Company, or induce
the Company to use, any proprietary information of any previous employer
of his or other third party without that party's consent.
10. Entire Agreement
-5-
This Agreement sets forth the entire agreement between Xxxxxx and the
Company and this Agreement shall be in addition to, and shall not
terminate or supersede, any additional obligations Xxxxxx may have
pursuant to any prior employment agreements or other non-disclosure
agreements or under applicable law with respect to confidentiality,
non-competition, assignment of rights to intellectual property or the
like. In the event of conflict between this Agreement and any prior
agreement between Xxxxxx and the Company, this Agreement shall govern. No
deletion, addition, marking, notation or the like change to the body of
this Agreement shall be of any force or effect and this Agreement shall be
interpreted as if such change had not been made. This Agreement may not be
modified or amended, and no breach shall be deemed to be waived, unless
agreed to in writing by Xxxxxx and an expressly authorized officer of the
Company. If any provision of this Agreement should, for any reason, be
held invalid or unenforceable in any respect, it shall not affect any
other provisions, and shall be construed by limiting it so as to be
enforceable to the maximum extent permissible by law. Provisions of this
Agreement shall survive any termination if so provided in this Agreement
or if necessary or desirable to accomplish the purpose of other surviving
provisions.
11. Assignment
Neither the Company nor Xxxxxx may make any assignment of this Agreement
or any interest in it, by operation of law or otherwise, without the prior
written consent of the other; provided, however, that the Company may
assign its rights and obligations under this Agreement without his consent
in the event that the Company shall hereafter affect a reorganization,
consolidate with, or merge into any entity or transfer to any entity all
or substantially all of the business, properties or assets of the Company
or of any division or line of business of the Company with which Xxxxxx is
at any time associated. This Agreement shall inure to the benefit of and
be binding upon Xxxxxx and the Company, and each of their respective
successors, executors, administrators, heirs, representatives and
permitted assigns.
12. Employment Relationship
Xxxxxx acknowledges and agrees that, except as otherwise provided
specifically herein, this Agreement does not in any way restrict his right
or that of the Company to terminate his employment.
13. Governing Law
This is agreement shall be governed by and construed in accordance with
the laws of Texas, without regard to the conflict of laws principles
thereof.
14. Signatures
Xxxxxx assures the Company that he has read and understood all of the
terms of this Agreement; that he has had a full and reasonable opportunity
to consider its terms and to consult with any person of his choosing
before signing; that he has not relied on any agreements or
representations, express or implied, that are not set forth expressly in
this
-6-
Agreement; and that he signs this Agreement knowingly and voluntarily.
Intending to be legally bound hereby, each party signs this Agreement as
of the day and year written below.
Signature: /s/ Xxx Xxxxxx
-----------------------
Printed Name: Xxx Xxxxxx
Date: 09/19/04
Accepted and agreed:
UGS CORP.
By:___________________________
Title:________________________
Date:_________________________
-7-
EXHIBIT A
LIST OF PRIOR INVENTIONS AND ORIGINAL WORKS OF AUTHORSHIP
IDENTIFYING NUMBER
TITLE DATE OR BRIEF DESCRIPTION
----- ---- --------------------
________________________ ________________________ ____________________
N/A
Signature of Xxx Xxxxxx:__________________________
Date:_______________
