EXHIBIT 10.44
XXXxXXXX.xxx, Inc.
[FORM OF EXECUTIVE CONFIDENTIALITY & NON-DISCLOSURE AGREEMENT]
This Agreement is entered into as of [Startdate] (the "Effective Date") by
and between XXXxXXXX.xxx, Inc. (the "Company"), and [First Name Last Name]
("Executive").
In consideration of the promises and mutual covenants herein contained, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, it is mutually covenanted and agreed by and between the
parties as follows:
1. Position and Duties. Executive shall be employed as the [Position] of
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the Company, reporting to the Company's Board of Directors, and assuming and
discharging such responsibilities as are commensurate with Executive's position.
Executive shall perform Executive's duties faithfully and to the best of
Executive's ability and shall devote Executive's full business time and effort
to the performance of Executive's duties hereunder.
2. At-Will Employment. The parties agree that Executive's employment
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with the Company shall be "at-will" employment and may be terminated at any time
with or without cause or notice at the option of either the Company or
Executive. No provision of this Agreement shall be construed as conferring upon
Executive a right to continue as an employee of the Company.
3. Compensation. For all services to be rendered pursuant to this
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Agreement by Executive, Executive shall receive [Salary] on an annual basis (the
"Base Salary"), payable monthly in accordance with the Company's normal payroll
practices. Executive understands and agrees that neither Executive's job
performance nor promotions, commendations, bonuses or the like from the Company
give rise to or in any way serve as the basis for modification, amendment, or
extension by implication or otherwise, of this Agreement.
4. Discretionary Bonus. The performance of Executive and the Company may
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be reviewed by the Board of Directors (the "Board") annually, and, on that
basis, the Board may, in its discretion, award the Executive a bonus. Any such
bonus shall be subject to applicable withholding.
5. Other Benefits. During Executive's employment hereunder, Executive
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shall be entitled to participate in the employee benefit plans and programs of
the Company, if any, to the extent that Executive's position, tenure, salary,
age, health and other qualifications make him eligible to participate in such
plans or programs, subject to the rules and regulations applicable
thereto. The Company reserves the right to cancel or change the benefit plans
and programs it offers to its employees at any time.
6. Options. Subject to approval of the Company's Board of Directors,
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Executive shall be granted an option (the "Option") to purchase a total of
[Stock options] shares of the Company's Common Stock, at a purchase price per
share equal to the fair market value of the Common Stock on the date of approval
of the grant by the Company's Board of Directors. The shares subject to the
Option (the "Shares") shall vest (a) 20% on the Effective Date (provided,
however, that the Company shall have a right of repurchase with respect to
Shares issued upon exercise of the Option at the original exercise price per
share if (A) before the three month anniversary of the Effective Date
Executive's employment is terminated for any reason or (B) before the sixth
month anniversary of the Effective Date Executive (i) voluntarily terminates, or
(ii) is terminated for Cause (as defined below)), and (b) 20% on each
anniversary of the Effective Date, so that the shares are fully vested on the
fourth anniversary of the Effective Date. Fifty percent (50%) of any unvested
shares shall accelerate and become immediately vested if within six months after
a change of control, Executive is terminated or suffers a material diminution in
compensation or duties. Vesting of the Shares shall be subject to Executive's
continued employment with the Company on the relevant vesting dates. The Option
shall be subject to the terms, definitions and provisions of the Company's Stock
Option Plan (the "Plan") and an applicable option agreement (the "Option
Agreement") between the Company and Executive, which documents are incorporated
herein by reference.
Cause shall mean (i) any act of personal dishonesty taken by the Executive
in connection with Executive's responsibilities to the Company which is intended
to result in substantial personal enrichment of the Executive, (ii) conviction
of a felony, (iii) a willful act that constitutes misconduct and is injurious to
the Company or (iv) continued willful violations by the Optionee of his
obligations to the Company after there has been delivered to Optionee a written
demand for performance from the Company which describes the basis for the
Company's belief that Optionee has not substantially performed his duties.
7. Expenses. The Company shall reimburse Executive for reasonable
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travel, entertainment or other expenses incurred by Executive in the furtherance
of or in connection with the performance of Executive's duties hereunder, in
accordance with the Company's expense reimbursement policy as in effect from
time to time.
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8. Right to Advice of Counsel. Executive acknowledges that he has had
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the right to consult with counsel and is fully aware of Executive's rights and
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obligations under this Agreement.
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9. Successors.
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(a) Company's Successors. For all purposes under this Agreement,the
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term "Company" shall include any successor to the Company's business and/or
assets that assumes the obligation of the Company under this Agreement or which
becomes bound by the terms of this Agreement by operation of law.
(b) Executive's Successors. Without the written consent of the
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Company, Executive shall not assign or transfer this Agreement or any right or
obligation under this Agreement to any other person or entity. Notwithstanding
the foregoing, the terms of this Agreement and all rights of Executive hereunder
shall inure to the benefit of, and be enforceable by, Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
10. Confidential Information.
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(a) Company Information. Executive shall at all times during the
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term of employment with the Company and thereafter, hold in strictest
confidence, and not use, except for the benefit of the Company, or disclose to
any person, firm or corporation without written authorization of the Board, any
Confidential Information of the Company. As used herein, "Confidential
Information" means any Company proprietary information, technical data, trade
secrets or know-how, including, but not limited to, research, product plans,
products, services, customer lists and customers (including, but not limited to,
customers of the Company on whom Executive has called or with whom Executive
became acquainted during the term of Executive's employment), markets, software,
developments, inventions, processes, formulas, technology, designs, drawings,
engineering, hardware configuration information, marketing, finances or other
business information disclosed to Executive by the Company either directly or
indirectly in writing, orally or by drawings or observation of parts or
equipment. "Confidential Information" does not include any of the foregoing
items which has become publicly known and made generally available through no
wrongful act of Executive or of others who were under confidentiality
obligations as to the item or items involved or improvements or new versions
thereof.
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(b) Former Employer Information. Executive shall not, during
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Executive's employment with the Company, improperly use or disclose any
proprietary information or trade secrets of any former or concurrent employer or
other person or entity and Executive shall not bring onto the premises of the
Company any unpublished document or proprietary information belonging to any
such employer, person or entity unless consented to in writing by such employer,
person or entity.
(c) Third Party Information. Executive shall hold all confidential or
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proprietary information that the Company has received from any third party to
which it is the Company's obligation to maintain the confidentiality of such
information and to use it only for certain limited purposes in the strictest
confidence and not to disclose it to any person, firm or corporation or to use
it except as necessary in carrying out Executive's work for the Company
consistent with the Company's agreement with such third party.
11. Inventions. The Executive hereby represents, warrants and covenants
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with respect to Prior Inventions or Inventions, as the case may be, as follows:
(a) Inventions Retained and Licensed. Attached hereto, as Exhibit A,
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is a list describing all inventions, original works of authorship, developments,
improvements, and trade secrets which were made by Executive prior to
Executive's employment with the Company (collectively referred to as "Prior
Inventions"), which belong to Executive, which relate to the Company's proposed
business, products or research and development, and which are not assigned to
the Company hereunder; or, if no such list is attached, Executive hereby
represents that there are no such Prior Inventions. If in the course of
Executive's employment with the Company, Executive incorporates into a Company
product, process or machine a Prior Invention owned by Executive or in which the
Executive has an interest, the Company is hereby granted and shall have a
nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make,
have made, modify, use and sell such Prior Invention as part of or in connection
with such product, process or machine.
(b) Assignment of Inventions. Executive shall, or will promptly make,
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full written disclosure to the Company, will hold in trust for the sole right
and benefit of the Company, and hereby assign to the Company, or its designee,
all of Executive's right, title and interest in and to any and all inventions,
original works of authorship, developments, concepts, improvements, designs,
discoveries, ideas, trademarks or trade secrets, whether or not patentable or
registrable under copyright or similar laws, which Executive may solely or
jointly conceive or develop or reduce to practice, or cause to be conceived or
developed or reduced to practice, during the period of time Executive is
employed by the Company (collectively referred to as "Inventions"), except as
provided in Section 11(f) below. Executive hereby acknowledges that
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all original works of authorship which are made by Executive (solely or jointly
with others) within the scope of and during the period of Executive's employment
with the Company and which are protectible by copyright are "works made for
hire," as that term is defined in the United States Copyright Act. Executive
hereby understands and agrees that the decision whether or not to commercialize
or market any invention developed by Executive solely or jointly with others is
within the Company's sole discretion and for the Company's sole benefit and that
no royalty will be due to Executive as a result of the Company's efforts to
commercialize or market any such invention.
(c) Inventions Assigned to the United States. Executive shall assign
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to the United States government all Executive's right, title, and interest in
and to any and all Inventions whenever such full title is required to be in the
United States by a contract between the Company and the United States or any of
its agencies.
(d) Maintenance of Records. Executive shall keep and maintain adequate
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and current written records of all Inventions made by him (solely or jointly
with others) during the term of Executive's employment with the Company. The
records will be in the form of notes, sketches, drawings, and any other format
that may be specified by the Company. The records will be available to and
remain the sole property of the Company at all times.
(e) Patent and Copyright Registrations. Executive shall assist the
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Company, or its designee, at the Company's expense, in every proper way to
secure the Company's rights in the Inventions and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto in any and
all countries, including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all applications,
specifications, oaths, assignments and all other instruments which the Company
shall deem necessary in order to apply for and obtain such rights and in order
to assign and convey to the Company, its successors, assigns, and nominees the
sole and exclusive rights, title and interest in and to such Inventions, and any
copyrights, patents, mask work rights or other intellectual property rights
relating thereto. Executive agrees that it is Executive's obligation to execute
or cause to be executed, when it is in Executive's power to do so, any such
instrument or papers after the termination of this Agreement. If the Company is
unable because of the Executive's mental or physical incapacity or for any other
reason to secure Executive's signature to apply for or to pursue any application
for any United States or foreign patents or copyright registrations covering
Inventions or original works of authorship assigned to the Company as above,
then Executive hereby irrevocably designates and appoints the Company and its
duly authorized officers and agents as Executive's agent and attorney in fact,
to act for and in Executive's behalf and stead to execute and file any such
applications and to do all other lawfully permitted acts to
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further the prosecution and issuance of letters patent or copyright
registrations thereon with the same legal force and effect as if executed by
Executive.
(f) Exception to Assignments. It is agreed and acknowledged that the
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provision of this Agreement requiring assignment of Inventions to the Company do
not apply to any invention which qualifies fully under the provisions of
California Labor Code Section 2870 (attached hereto as Exhibit B). Executive
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covenants that Executive will advise the Company promptly in writing of any
inventions that Executive believes meet the criteria in California Labor Code
Section 2870 and not otherwise disclosed on Exhibit A.
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12. Conflicting Employment. Executive shall not, during the term of
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Executive's employment with the Company, engage in any other employment,
occupation, consulting or other business activity directly related to the
business in which the Company is now involved or becomes involved during the
term of Executive's employment, nor will Executive engage in any other
activities that conflict with Executive's obligations to the Company.
13. Returning Company Documents. At the time of leaving the employ of the
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Company, Executive covenants that Executive shall deliver to the Company (and
will not keep in Executive's possession, recreate or deliver to anyone else) any
and all devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, materials,
equipment, other documents or property, or reproductions of any aforementioned
items developed by Executive pursuant to Executive's employment with the Company
or otherwise belonging to the Company, its successors or assigns, including,
without limitation, those records maintained pursuant to paragraph 11(d). In
the event of the termination of Executive's employment, Executive hereby
covenants to sign and deliver the "Termination Certification" attached hereto as
Exhibit C.
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14. Notification of New Employer. In the event that Executive leaves the
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employ of the Company, Executive agrees to grant consent to notification by the
Company to Executive's new employer about Executive's rights and obligations
under this Agreement.
15. Solicitation of Employees. Executive covenants that, for a period of
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twelve (12) months immediately following the termination of Executive's
relationship with the Company for any reason, whether with or without cause,
Executive shall not either directly or indirectly solicit, induce, recruit or
encourage any of the Company's employees to leave their employment, or take away
such employees, or attempt to solicit, induce, recruit, encourage or take away
employees of the Company, either for Executive or for any other person or
entity.
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16. Conflict of Interest Guidelines. Executive covenants that Executive
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shall diligently adhere to the Conflict of Interest Guidelines attached as
Exhibit D hereto.
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17. Notice Clause.
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(a) Manner. Any notice hereby required or permitted to be given shall
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be sufficiently given if in writing and delivered in person or sent by First
Class, registered or certified mail, postage prepaid, to either party at the
address of such party or such other address as shall have been designated by
written notice by such party to the other party.
(b) Effectiveness. Any notice or other communication required or
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permitted to be given under this Agreement will be deemed given on the day when
delivered in person, or the third business day after the day on which such
notice was mailed in accordance with this Section.
18. Arbitration.
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(a) Except as provided in Section 18(c) below, the parties hereto
agree that any dispute or controversy arising out of, relating to, or in
connection with this Agreement, or the interpretation, validity, construction,
performance, breach, or termination thereof, shall be finally settled by binding
arbitration, unless otherwise required by law, to be held in Los Angeles,
California under the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association as then in effect (the "Rules"). The
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arbitrator(s) may grant injunctions or other relief in such dispute or
controversy. The decision of the arbitrator(s) shall be final, conclusive and
binding on the parties to the arbitration, and judgment may be entered on the
decision of the arbitrator(s) in any court having jurisdiction.
(b) The arbitrator(s) shall apply California law to the merits of any
dispute or claim, without reference to rules of conflicts of law.
(c) The parties may apply to any court of competent jurisdiction for a
temporary restraining order, preliminary injunction, or other interim or
conservatory relief, as necessary, without breach of this arbitration agreement
and without abridgement of the powers of the arbitrator.
(d) EXECUTIVE HAS READ AND UNDERSTANDS THIS SECTION, WHICH DISCUSSES
ARBITRATION. EXECUTIVE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EXECUTIVE
AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH
THIS AGREEMENT, OR THE INTER-
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PRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION THEREOF TO
BINDING ARBITRATION, UNLESS OTHERWISE REQUIRED BY LAW, AND THAT THIS ARBITRATION
CLAUSE CONSTITUTES A WAIVER OF EXECUTIVE'S RIGHT TO A JURY TRIAL AND RELATES TO
THE RESOLUTION OF ALL DISPUTES RELATING TO EXECUTIVE'S RELATIONSHIP WITH THE
COMPANY, INCLUDING BUT NOT LIMITED TO, CLAIMS OF HARASSMENT, DISCRIMINATION,
WRONGFUL TERMINATION AND ANY STATUTORY CLAIMS.
19. Severability. The invalidity or unenforceability of any provision of
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this Agreement, or any terms hereof; shall not affect the validity or
enforceability of any other provision or term of this Agreement.
20. Integration. This Agreement and the Option Agreement represent the
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entire agreement and understanding between the parties as to the subject matter
herein and supersede all prior or contemporaneous agreements whether written or
oral. No waiver, alteration, or modification of any of the provisions of this
Agreement shall be binding unless in writing and signed by duly authorized
representatives of the parties hereto.
21. Governing Law. This Agreement shall be governed by and construed in
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accordance with the internal substantive laws, but not the choice of law rules,
of the state of California.
22. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be an original, and all of which together
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by their duly authorized officers, as of the day and year
first above written.
XXXxXXXX.xxx, Inc.
By:___________________________________
[Signing Officer]
[Title of Signing Officer]
EXECUTIVE
______________________________________
[First Name Last Name]
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EXHIBIT A
LIST OF PRIOR INVENTIONS
AND ORIGINAL WORKS OF AUTHORSHIP
Title Date Identifying Number or Brief Description
_____ No inventions or improvements
_____ Additional Sheets Attached
Signature of Executive:
[First Name Last Name]
Date: ____________________
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EXHIBIT B
CALIFORNIA LABOR CODE SECTION 2870
INVENTION ON OWN TIME - EXEMPTION FROM AGREEMENT
"(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
Executive developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer; or
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable."
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EXHIBIT C
XXXxXXXX.xxx, Inc.
TERMINATION CERTIFICATION
This is to certify that I do not have in my possession, nor have I failed
to return, any devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, materials,
equipment, other documents or property, or reproductions of any aforementioned
items belonging to XXXxXXXX.xxx, Inc., its subsidiaries, affiliates, successors
or assigns (together, the "Company").
I further certify that I have complied with all the terms of the Employment
Agreement signed by me, including the reporting of any inventions and original
works of authorship (as defined therein), conceived or made by me (solely or
jointly with others) covered by that agreement.
I further agree that, in compliance with the Employment Agreement, I will
preserve as confidential all trade secrets, confidential knowledge, data or
other proprietary information relating to products, processes, know-how,
designs, formulas, developmental or experimental work, computer programs, data
bases, other original works of authorship, customer lists, business plans,
financial information or other subject matter pertaining to any business of the
Company or any of its employees, clients, consultants or licensees.
I further agree that for twelve (12) months from this date, I will not hire
any employees of the Company and I will not solicit, induce, recruit or
encourage any of the Company's employees to leave their employment.
Date:
[First Name Last Name]
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EXHIBIT D
XXXxXXXX.xxx, Inc.
CONFLICT OF INTEREST GUIDELINES
It is the policy of XXXxXXXX.xxx, Inc. (the "Company') to conduct its
affairs in strict compliance with the letter and spirit of the law and to adhere
to the highest principles of business ethics. Accordingly, all officers,
employees and independent contractors must avoid activities which are in
conflict, or give the appearance of being in conflict, with these principles and
with the interests of the Company. The following are potentially compromising
situations which must be avoided. Any exceptions must be reported to the
President and written approval for continuation must be obtained.
1. Revealing confidential information to outsiders or misusing
confidential information. Unauthorized divulging of information
is a violation of this policy whether or not for personal gain
and whether or not harm to the Company is intended. (The
Employment Agreement elaborates on this principle and is a
binding agreement.)
2. Accepting or offering substantial gifts, excessive entertainment,
favors or payments which may be deemed to constitute undue
influence or otherwise be improper or embarrassing to the
Company.
3. Participating in civic or professional organizations that might
involve divulging confidential information of the Company.
4. Initiating or approving personnel actions affecting reward or
punishment of employees or applicants where there is a family
relationship or is or appears to be a personal or social
involvement.
5. Initiating or approving any form of personal or social harassment
of employees.
6. Investing or holding outside directorship in suppliers,
customers, or competing companies, including financial
speculations, where
such investment or directorship might influence in any manner a
decision or course of action of the Company.
7. Borrowing from or lending to employees, customers or suppliers.
8. Acquiring real estate of interest to the Company.
9. Improperly using or disclosing to the Company any proprietary
information or trade secrets of any former or concurrent employer
or other person or entity with whom obligations of
confidentiality exist.
10. Unlawfully discussing prices, costs, customers, sales or markets
with competing companies or their employees.
11. Making any unlawful agreement with distributors with respect to
prices.
12. Improperly using or authorizing the use of any inventions which
are the subject of patent claims of any other person or entity.
13. Engaging in any conduct which is not in the best interest of the
Company.
Each officer, employee and independent contractor must take every necessary
action to ensure compliance with these guidelines and to bring problem areas to
the attention of higher management for review. Violations of this conflict of
interest policy may result in discharge without warning.
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