EXHIBIT 10.25
EMPLOYEE NONDISCLOSURE AND DEVELOPMENTS AGREEMENT
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In consideration and as a condition of my employment or continued employment by
NEON Systems, Inc. (the "Company"), I hereby agree with the Company as follows:
1. I will not at any time, whether during or after the termination of my
employment, reveal to any person or entity any of the trade secrets or
confidential information concerning the organization, business or finances of
the Company or of any third party which the Company is under an obligation to
keep confidential ( including but not limited to trade secrets or confidential
information respecting inventions, products, designs, methods, know-how,
techniques, systems, processes, software programs, works of authorship, customer
lists, projects, plans and proposals), except as may be required in the ordinary
course of performing my duties as an employee of the Company, and I shall keep
secret all matters entrusted to me and shall not use or attempt to use any such
information in any manner which may injure or cause loss or may be calculated to
injure or cause loss whether directly or indirectly to the Company.
Further, I agree that during my employment I shall not make, use or permit to be
used any notes, memoranda, reports, lists, records, drawings, sketches,
specifications, software programs, data, documentation or other materials of any
nature relating to concerning any of its dealings or affairs otherwise than for
the benefit of the Company. I further agree that I shall not, after the
termination of my employment, use or permit to be used any such notes,
memoranda, reports, lists, records, drawings, sketches, specifications, software
programs, data documentation or other materials, it being agreed that all of the
foregoing shall be and remain the sole and exclusive property of the Company and
that immediately upon the termination of my employment I shall deliver all of
the foregoing, and all copies thereof, to the Company, at its main office.
2. If at any time or times during my employment, I shall (either alone or with
others) make, conceive, discover or reduce to practice any invention,
modification, discovery, design, development, improvement, process, software
program, work of authorship, documentation, formula, data, technique, know-how,
secret or intellectual property right whatsoever or any interest therein
(whether or not patentable or registrable under copyright or similar statutes or
subject to analogous protection ) (herein called "Developments") that (a)
relates to the business of the Company or any customer of or supplier to the
Company or any of the products or services being developed, manufactured or sold
by the Company or which may be used in relation therewith, (b) results from
tasks assigned me by the company or (c) results from the use of premises or
personal property (whether tangible or intangible) owned, leased or contracted
for by the Company and its assigns, and I shall promptly disclose to the Company
(or any persons designated by it) each such Development and hereby assign any
rights I may have or acquire in the Developments and benefits without further
compensation and shall communicate, without cost or delay, and without
publishing the same, all available information relating thereto (with all
necessary plans and models) to the Company.
Upon disclosure of each Development to the Company, I will, during my employment
and at any time thereafter, at the request and cost of the Company, sign,
execute, make and do all such deeds, documents, acts and things as the Company
and its duly authorized agents may reasonably require:
(a) to apply for, obtain and vest in the name of the Company alone (unless the
Company otherwise directs) letters patent, copyrights or other analogous
protection in any country throughout the world and when so obtained or vested to
renew and restore the same; and
(b) to defend any opposition proceedings in respect of such applications and any
opposition proceedings or petitions or applications for revocation of such
letters patent, copyright or other analogous protection.
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In the event the Company is unable, after reasonable effort, to secure my
signature on any letters patent, copyright or other analogous protection
relating to a Development, whether because of my physical or mental incapacity
or for any other reason whatsoever, I hereby irrevocably designate and appoint
the Company and its duly authorized officers and agents as my agent and
attorney-in-fact, to act for and in my behalf and stead to execute and file any
such application or applications and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent, copyright or other
analogous protection thereon with the same legal force and effect as if executed
by me.
3. I agree that any breach of this Agreement by me will cause irreparable damage
to the Company and that in the event of such breach the Company shall have, in
addition to any and all remedies of law, the right to an injunction, specific
performance or other equitable relief to prevent the violation of my obligations
hereunder.
4. I understand that this Agreement does not create an obligation on the Company
or any other person or entity to continue my employment.
5. I represent that the Developments identified in the pages, if any, attached
hereto comprise all the unpatented and uncopyrighted Developments which I have
made or conceived prior to my employment by the Company, which Developments are
excluded from this Agreement. I understand that it is only necessary to list the
title and purpose of such Developments but not details thereof.
6. In order to provide for an expeditious resolution of any "Covered Dispute"
(as such term is defined in paragraph (a) below), I agree to the mandatory
mediation and arbitration procedure set forth below (the "Procedure"):
(a) The term "Covered Dispute" shall mean and include, subject to
paragraph (b) below, any dispute that may arise between the Company and me
relating to my employment or any termination of my employment and any dispute
that may arise between the Company and me relating to this Agreement. Subject
to paragraph (b) below, "Covered Disputes" shall include, without limitation,
(i) any dispute regarding the arbitrability of any matter hereunder and (ii)
any claim that could be asserted in court or before an administrative agency
or claims as to which I have an alleged cause of action, including without
limitation claims for breach of any contract or covenant (express or
implied), tort claims, claims for discrimination (including but not limited
to discrimination based on sex, pregnancy, race, national or ethnic origin,
age, religion, creed, marital status, sexual orientation, mental or physical
disability or medical condition or other characteristics protected by
statute), claims for wrongful discharge, violations of confidentiality or
breaches of trade secrets, and/or claims for violation of any federal, state
or other governmental law, statue, regulation or ordinance, and whether based
on statute or common law. Covered Disputes include all such claims whether
made against the Company, any of its subsidiary or affiliated entities, or
the individual officers or directors thereof (in an official or personal
capacity).
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(b) Notwithstanding any other provision of this Section 6, the
following claims shall not be "Covered Disputes" and shall not be subject to
the Procedure: (i) claims for workers' compensation benefits; (ii) claims for
unemployment compensation benefits; (iii) claims by the Company for
injunctive and/or other equitable relief, including but not limited to such
claims for unfair competition and/or the use or unauthorized disclosure of
trade secrets or confidential information, as to which the Company may seek
and obtain relief from a court of competent jurisdiction; and (iv) a claim
based upon the Company's current, successor or future employee benefits
and/or welfare plans that contain an appeal procedure or other procedure for
the resolution of disputes under the Plan.
(c) Under the Procedure, Covered Disputes must (after appropriate
attempts to resolve the dispute internally through the Company's management)
be submitted for resolution by non-binding mediation and, if needed,
mandatory arbitration.
(d) I acknowledge that my agreement to the Procedure is given in
exchange for rights to which I am not otherwise entitled - namely, the more
expeditious resolution of disputes, my employment or continued employment by
the Company, and my being provided access to confidential information and
trade secrets of the company, whether now or hereafter existing or developed,
as may be required or permitted by the Company in the ordinary course of
performing my duties as an employee of the Company. In exchange for my
agreement to the Procedure, the Company likewise is agreeing to the use of
mediation and arbitration as the exclusive forum for resolving Covered
Disputes. Therefore, both the Company and I shall be precluded from bringing
or raising in court or another forum any Covered Dispute.
(e) I agree with the Company that any Covered Dispute must be
submitted for non-binding mediation before a neutral third party and (if
necessary) for final and binding resolution by a private and impartial
arbitrator, to be jointly selected by the Company and me.
(f) As a prerequisite for submitting a Covered Dispute to mediation
and (if necessary) arbitration, I agree to make good-faith efforts to resolve
the Covered Dispute internally on an informal basis through the Company's
management channels appropriate to the circumstances of that individual
dispute. All disputes shall initially be referred to the President of the
Company. Only when such internal efforts fail my I submit an employment
dispute to mediation and (if necessary) final and binding arbitration under
the terms of the Procedure.
(g) If efforts at informal resolution fail, I agree that Covered
Disputes must first be submitted for non-binding mediation before a neutral
third party. Mediation is an informal process where the parties to a dispute
meet in an attempt to reach a voluntary resolution, using the third party as
a facilitator. Mediation shall be conducted and administered by the American
Arbitration Association ("AAA") under its Employment Mediation Rules, which
are incorporated herein by reference.
(h) If a Covered Dispute remains unresolved at the conclusion of the
mediation process, I agree that either I or the Company may submit the
dispute for resolution by final binding arbitration under the Procedure. The
arbitration will be conducted under the Employment Dispute Resolution Rules
of the AAA, as amended and effective on June 1, 1996, and as such Rules may
be amended from time to time after the date hereof. These Rules, incorporated
by reference herein, include (but are not limited to) the procedures for the
joint selection of an impartial arbitrator and for the hearing of evidence
before the arbitrator. The arbitrator shall have the authority to allow for
appropriate discovery and exchange of information prior to a hearing,
including (but not limited to) production of documents, information requests,
depositions and subpoenas. I acknowledge that I may obtain a copy of the
complete AAA Employment Dispute Resolution Rules from the Business Manager.
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(i) I agree that any conflict between the rules and procedures set
forth in the AAA Rules and those set forth in this Agreement shall be
resolved in favor of those in this Agreement. The burden of proof at an
arbitration shall at all times be upon the party seeking relief. In reaching
his or her decision, the arbitrator shall apply the governing substantive law
applicable to the claim(s), cause(s) of action and defense(s) asserted by the
parties as applicable in the State of Texas or other applicable jurisdiction.
The arbitrator shall have the power to award all remedies that could be
awarded by a court or administrative agency in accordance with the governing
and applicable substantive law.
(j) I agree that, with respect to any Covered Dispute, the aggrieved
party must give written notice of any claim to the other party within three
months of the date the aggrieved first knew or should have known of the facts
giving rise to the claim; otherwise, the claim shall be void and deemed
waived. The written notice shall describe the nature of all claims asserted
and the facts upon which such claims are based and shall be mailed to the
other party by certified or registered mail, return receipt requested. Any
such notice mailed to the Company shall be addressed to the President of the
Company.
(k) Any mediation or arbitration conducted pursuant to the Procedure
shall take place in Sugar Land, Texas unless an alternative location is
chosen by the mutual agreement of the parties. The arbitrator shall render a
decision and award within 30 days after the close of arbitration hearing or
at any later time on which the parties may agree. The award shall be in
writing and signed and dated by the arbitrator and shall contain express
findings of fact and the basis for the award.
(l) I agree the Company and I will share equally the AAA
administrative fees and the fees and expenses of any and all mediators and
arbitrators. All other costs and expenses associated with the arbitration,
including, without limitation, the parties' respective attorneys fees, shall
be borne by the party incurring the expense.
(m) Judgment upon the award rendered by the arbitrator may be entered
in any court having jurisdiction. The award may be vacated or modified only
on the grounds specified in the U.S. Arbitration Act or other applicable law.
I further agree that the Procedure does not in any way alter my status
as an at-will employee of the Company. Accordingly, I acknowledge that I am,
and the Company is, always free to terminate the employment relationship at
any time for any lawful reason (with or without cause), and my employment is
not for any specific or definite duration.
7. Any waiver by the Company of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any subsequent breach of
such provision or any other provision hereof.
8. I hereby agree that each provision herein shall be treated as a separate
and independent clause, and the unenforceability of any one clause shall in
no way impair the enforceability of any of the other clauses herein.
Moreover, if one or more of the provisions contained in this Agreement shall
for any reason be held to be excessively broad as to scope, activity, subject
or otherwise so as to be unenforceable at law, such provision or provisions
shall be construed by the appropriate judicial body by limiting or reducing
it or them, so as to be enforceable to the maximum extent compatible with the
applicable law as it shall then appear.
9. My obligations under this Agreement shall survive the termination of my
employment regardless of the manner of such termination and shall be binding
upon my heirs, executors, administrators and legal representatives.
10. The term "Company" shall include NEON Systems, Inc. and any of its
subsidiaries, subdivisions or affiliates. The Company shall have the right to
assign this Agreement to its successors and assigns, and all covenants and
agreements hereunder shall inure to the benefit of and be enforceable by said
successors or assigns.
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11. This Agreement shall be governed by and construed in accordance with the
laws of Texas.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as a sealed
instrument as of
(date) 1-4-02
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/s/ Xxxxx X. Xxxxxxxx
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Signature
Xxxxx X. Xxxxxxxx
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Name - Printed
Agreed as of (date) 1-04-02
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NEON Systems, Inc.
By: /s/ J. Xxxxxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxxx Xxxxxxx
Title: Chief Financial Officer
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