EMPLOYMENT, CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT AGREEMENT
EXHIBIT
10.18
EMPLOYMENT,
CONFIDENTIAL
INFORMATION
AND
INVENTION
ASSIGNMENT
AGREEMENT
As
a
condition of my employment with DiscLive, Inc., a Delaware corporation (the
“Company”),
and
my receipt of the compensation now and hereafter paid to me by the Company
and
the Company’s agreement in Section 2(a)
hereof,
I agree to the following terms and conditions of this Employment, Confidential
Information and Invention Assignment Agreement (this “Agreement”):
1. At-Will
Employment.
I
UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR AN
UNSPECIFIED DURATION AND CONSTITUTES “AT-WILL” EMPLOYMENT. I ALSO UNDERSTAND
THAT ANY REPRESENTATION TO THE CONTRARY IS UNAUTHORIZED AND NOT VALID. I
ACKNOWLEDGE THAT THIS EMPLOYMENT RELATIONSHIP MAY BE TERMINATED AT ANY TIME,
WITH OR WITHOUT GOOD CAUSE OR FOR ANY OR NO CAUSE, AT THE OPTION OF EITHER
THE
COMPANY OR MYSELF, WITH OR WITHOUT NOTICE.
2. Confidential
Information.
(a) Company
Information and Goodwill. Concurrently
upon the commencement of my employment, the Company agrees and covenants to:
(1) make available to me Confidential Information (hereinafter defined) of
the Company that will enable me to optimize the performance of my duties to
the
Company; and (2) provide me with goodwill support, such as expense
reimbursements in accordance with Company policy limits, Confidential
Information, or contact with clients, customers or business associates, in
order
to help me develop goodwill for the Company. The foregoing is not contingent
upon my continued employment for any length of time, but is contingent upon
my
full compliance with the restrictions in Sections
2
through
8
herein.
I agree at all times during the term of my employment and thereafter to hold
in
the strictest confidence, and not to use, except for the benefit of the Company,
or to disclose to any person, firm or entity without written authorization
of
the Company’s Board of Directors, any of the Company’s Confidential Information.
I understand that “Confidential
Information”
means
any information that relates to the Company’s actual or anticipated business or
research and development, technical data, trade secrets or know-how, including,
but not limited to, research, product plans or other information regarding
the
Company’s products or services and markets therefor, customer lists and
customers (including, but not limited to, the Company’s customers on whom I
called or with whom I became acquainted during the term of my employment),
software, developments, inventions, processes, formulas, technology, designs,
drawings, engineering, hardware configuration information, marketing, finances
or other business information. I further understand that Confidential
Information does not include any of the foregoing items that is or becomes
publicly known through no wrongful act or omission of mine or of others who
were
under confidentiality obligations as to the item or items involved.
(b) Former
Employer Information.
I agree
that I will not, during my 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 that I will 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.
DISCLIVE:
Xxxxxx Xxxx Agreement
(c) Third
Party Information.
I
recognize that the Company has received, and in the future will receive, from
third parties their confidential or proprietary information, subject to a duty
on the Company’s part to maintain the confidentiality of such information and to
use it only for certain limited purposes. I agree to hold all such confidential
or proprietary information in the strictest confidence, and not to disclose
it
to any person, firm or entity or to use it, except as necessary in carrying
out
my work for the Company consistent with the Company’s agreement with such third
party.
3. Inventions.
(a) Inventions
Retained and Licensed.
I have
attached as Exhibit A
hereto a
list describing all inventions, original works of authorship, developments,
improvements and trade secrets that (i) were made by me prior to my
employment with the Company, (ii) belong to me, (iii) relate to the
Company’s business, products or research and development or the Company’s
proposed business, products or research and development and (iv) are not
assigned to the Company hereunder (collectively, “Prior
Inventions”);
or,
if no such list is attached, I represent that there are no such Prior
Inventions. I agree that I will not incorporate, or permit to be incorporated,
any Prior Invention owned by me or in which I have an interest into a Company
product, process or service without the Company’s prior written consent.
Notwithstanding the foregoing sentence, if, in the course of my employment
with
the Company, I incorporate into a Company product, process or service a Prior
Invention owned by me or in which I have an interest, I hereby grant to the
Company a nonexclusive, royalty-free, fully paid-up, 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 service, and to
practice any method related thereto.
(b) Assignment
of Inventions.
I agree
that I will promptly make 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 my 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 I 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 I am in the
employ of the Company (collectively, “Inventions”),
except as provided in Section 3(f)
below. I
further acknowledge that all original works of authorship that are made by
me
(solely or jointly with others) within the scope of and during the period of
my
employment with the Company and that are protectable by copyright are “works
made for hire,” as that term is defined in the United States Copyright Act. I
understand and agree that the decision whether or not to commercialize or market
any Invention is within the Company’s sole discretion and for the Company’s sole
benefit and that no royalty will be due to me as a result of the Company’s
efforts to commercialize or market any such Invention.
(c) Inventions
Assigned to the United States.
I agree
to assign to the United States government all my 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.
DISCLIVE:
Xxxxxx Xxxx Agreement
2
(d) Maintenance
of Records.
I agree
to keep and maintain adequate and current written records of all Inventions
during the term of my 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 the Company, and remain the
Company’s sole property, at all times.
(e) Patent
and Copyright Registrations.
I agree
to assist the Company, or its designee, at the Company’s expense, in every
proper way to secure the Company’s rights in any Inventions and any copyrights,
patents, mask work rights or other intellectual property rights relating thereto
in any and all countries, including, but not limited to, 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 that the Company deems necessary in order to apply for and obtain
such rights and in order to assign and convey to the Company or its successors,
assigns or 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. I further agree that my
obligation to execute, or cause to be executed, when it is in my power to do
so,
any such instrument or papers shall continue after the termination of this
Agreement. If the Company is unable because of my mental or physical incapacity
or for any other reason to secure my signature to apply for or to pursue any
application for any United States or foreign patents or copyright registrations
covering any Inventions or original works of authorship assigned to the Company
as above, then 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 applications and to
do
all other lawfully permitted acts to further the prosecution and issuance of
letters patent or copyright registrations thereon with the same legal force
and
effect as if executed by me.
(f) Exception
to Assignments.
I
understand that the provisions of this Agreement requiring assignment of
Inventions to the Company do not apply to any Invention that I have developed
entirely on my own time without using the Company’s equipment, supplies,
facilities, trade secret information or Confidential Information (an
“Other
Invention”),
except for those Other Inventions that either (i) relate at the time of
conception or reduction to practice of such Other Invention to the Company’s
business, or actual or demonstrably anticipated research or development of
the
Company or (ii) result from any work that I performed for the Company. I
will advise the Company promptly in writing of any Invention that I believe
constitutes an Other Invention and is not otherwise disclosed on Exhibit A.
I agree
that I will not incorporate, or permit to be incorporated, any Other Invention
owned by me or in which I have an interest into a Company product, process
or
service without the Company’s prior written consent. Notwithstanding the
foregoing sentence, if, in the course of my employment with the Company, I
incorporate into a Company product, process or service an Other Invention owned
by me or in which I have an interest, I hereby grant to the Company a
nonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, worldwide
license to make, have made, modify, use and sell such Other Invention as part
of
or in connection with such product, process or service, and to practice any
method related thereto.
4. Conflicting
Employment.
I agree
that, during the term of my employment with the Company, I will devote my full
time and efforts to the Company and I will not engage in any other employment,
occupation or consulting related to the business in which the Company is now
involved or becomes involved during the term of my employment, nor will I engage
in any other activities that conflict with my obligations to the
Company.
DISCLIVE:
Xxxxxx Xxxx Agreement
3
5. Solicitation
of Employees.
I agree
that during the course of my employment and for a period of eighteen (18)
months immediately following the termination of my relationship with the Company
for any reason (whether with or without cause, at the option of either the
Company or myself, with or without notice), I will not, either directly or
indirectly, solicit, induce, recruit or encourage any of the Company’s employees
to leave their employment or contractors to terminate their relationship with
the Company, or hire or take away such employees or contractors, or attempt
to
solicit, induce, recruit, encourage, hire or take away employees or contractors
of the Company, either for myself or for any other person or
entity.
6. Interference.
I agree
that during the course of my employment and for a period of eighteen (18)
months immediately following the termination of my relationship with the Company
for any reason (whether with or without cause, at the option of either the
Company or myself, with or without notice), I will not, either directly or
indirectly, interfere with the Company’s relationships with any of its customers
or clients whom I served or whose names became known to me during the course
of
my employment
(“Covered
Clients or Customers”). This
paragraph is geographically limited to any location or place of business where
a
Covered Client or Customer is present and available for solicitation at that
time. I acknowledge that I may not avoid the purpose and intent of this
paragraph by engaging in conduct within the geographically limited area from
a
remote location through means such as telecommunications, written
correspondence, computer generated or assisted communications or other similar
methods.
7. Covenant
Not to Compete.
(a) I
agree
that during the course of my employment and for a period of eighteen (18)
months immediately following the termination of my relationship with the Company
for any reason (whether with or without cause, at the option of either the
Company or myself, with or without notice), I will not without the Company’s
prior written consent, either directly or indirectly, (i) serve in any
capacity that could require me to use any of the Confidential Information,
goodwill or training that I received or had access to during my employment
with
the Company, including, without limitation, as an advisor, agent, supervisor,
consultant, contractor, director, employee, officer, partner, proprietor
or
otherwise of, (ii) have
any
ownership interest in (except for passive ownership of one percent (1%) or
less of any entity whose securities have been registered under the Securities
Act of 1933, as amended, or Section 12 of the Securities Exchange Act of
1934, as amended) or (iii) participate
in the organization, financing, operation, management or control of,
any
business in competition with the Company’s business as
conducted by the Company during the course of my employment with the Company
(including any customer of the Company).
The
foregoing covenant shall cover my activities in every part of the Territory
(hereinafter defined). “Territory”
shall
mean (i) all counties in the State of Texas, (ii) all other states of
the United States of America and (iii) all other countries of the world;
provided that, with respect to clauses (ii) and (iii) immediately above, the
Company either (1) derives at least five percent (5%) of its gross
revenues from such geographic area prior to the date of the termination of
my
relationship with the Company or (2) has active plans for the introduction
of such product or services in such geographic area within six (6) months
of the date of the termination of my relationship with the Company. I hereby
stipulate that the foregoing is a reasonable geographic area because of the
scope of the Company’s operations and my activities, and that this paragraph
creates a narrowly tailored advance approval requirement in order to avoid
unfair competition and irreparable harm to the Company and is not intended,
or
to be construed, as a general restraint from engaging in a lawful profession
or
a general covenant against competition. Further, I hereby agree that I may
not
avoid the purpose and intent of this paragraph by engaging in conduct within
the
geographically limited area from a remote location through means such as
telecommunications, written correspondence, computer generated or assisted
communications or other similar methods.
DISCLIVE:
Xxxxxx Xxxx Agreement
4
(b) I
acknowledge that my fulfillment of the obligations contained in this Agreement,
including, but not limited to, my obligation neither to use, except for the
benefit of the Company, or to disclose the Company’s Confidential Information
and my obligation not to compete contained in subsection
(a) above,
is
necessary to protect the Company’s Confidential Information and to preserve the
Company’s value and goodwill. I further acknowledge that the time, geographic
and scope limitations of my obligations under subsection
(a) above
are
reasonable, especially in light of the Company’s desire to protect its
Confidential Information, and that I will not be precluded from gainful
employment if I am obligated not to compete with the Company during the period
and within the Territory as described above.
(c) The
covenants contained in
subsection (a) above
shall be
construed as a series of separate covenants, one for each city, county and
state
of any geographic area in the Territory. Except for geographic coverage, each
such separate covenant shall be deemed identical in terms to the covenant
contained in subsection
(a) above.
If, in
any judicial proceeding, a court refuses to enforce any of such separate
covenants (or any part thereof), then such unenforceable covenant (or such
part)
shall be eliminated from this Agreement to the extent necessary to permit the
remaining separate covenants (or portions thereof) to be enforced. In the event
that the provisions of subsection
(a) above
are
deemed to exceed the time, geographic or scope limitations permitted by
applicable law, then such provisions shall be reformed to the maximum time,
geographic or scope limitations, as the case may be, then permitted by such
law.
9. Survival
of Covenants.
Each
restriction set forth in Sections 2,
3, 5, 6, 7, 8 and 11
hereof
shall survive the termination of my employment with Company. Further, the
existence of any claim or cause of action by me against Company, whether
predicated on this Agreement or otherwise, shall not constitute a defense to
the
enforcement by the Company of such restrictions, and in the event an enforcement
remedy is sought for my violation of any of those restrictions, the time periods
provided for in Sections 5,
6 and 7
shall be
extended by one day for each day that I failed to comply with the restriction
at
issue.
DISCLIVE:
Xxxxxx Xxxx Agreement
5
10. Early
Resolution Conference.
I
understand this Agreement to be clear and enforceable as written; however,
I
agree that if I should ever later challenge any provision as unclear,
unenforceable or inapplicable to any competitive activity that I intend to
engage in, I will first notify the Company in writing and meet with a Company
representative and a neutral mediator (if the Company elects to retain one
at
its expense) to discuss resolution of any disputes between the parties. I
further agree that I will provide this notification at least fourteen (14)
days before I engage in any activity that could foreseeably fall within a
questioned restriction contained in this Agreement, and that my failure to
comply with this requirement shall waive my right to challenge the reasonable
scope, clarity, applicability or enforceability of this Agreement and its
restrictions at a later time. All rights of both parties will be preserved
if
the early resolution conference requirement is complied with, even if no
agreement is reached in the conference.
11. Notification
of New Employer.
In the
event that I leave the employ of the Company, I hereby grant consent to
notification by the Company to my new employer about my rights and obligations
under this Agreement.
12. Further
Assurances; No Conflict.
I agree
to execute any proper oath or document or verify any proper document required
to
carry out the terms of this Agreement. I hereby represent that my performance
of
all the terms of this Agreement will not breach any agreement to keep in
confidence proprietary information acquired by me in confidence or in trust
prior to my employment by the Company. I have not entered into, and I agree
I
will not enter into, any oral or written agreement in conflict
herewith.
13. Arbitration
and Equitable Relief.
(a) Arbitration.
Except
as provided in this paragraph and in subsection (b)
below,
I agree
that any dispute, claim or controversy concerning my employment or the
termination of my employment or any dispute, claim or controversy arising out
of
or relating to any interpretation, construction, performance or breach of this
Agreement, shall be settled by arbitration to be held in Dallas, Texas in
accordance with the rules then in effect of the American Arbitration
Association. The arbitrator(s) shall be required to state in a written opinion
all facts and conclusions of law relied upon to support any decision rendered.
No arbitrator will have authority to render a decision that contains an outcome
determinative error of state or federal law, or to fashion a cause of action
or
remedy not otherwise provided for under applicable state or federal law. Any
dispute over whether the arbitrator(s) has failed to comply with the foregoing
will be resolved by summary judgment in a court of law. The
arbitrator may grant injunctions or other relief in such dispute or controversy.
The decision of the arbitrator shall be final, conclusive and binding on the
parties to the arbitration. Judgment may be entered on the arbitrator’s decision
in any court having jurisdiction. The Company will pay the arbitration costs
and
arbitrator’s fees beyond $500, subject to a final arbitration award on who
should bear costs and fees, and each of us shall separately pay our counsel
fees
and expenses. Except
as otherwise provided above, the parties hereby waive trial in a court of law
or
by jury.
All
other rights, remedies, statutes of limitation and defenses applicable to claims
asserted in a court of law will apply in the arbitration. I understand that
this
paragraph does not prohibit me from filing or cooperating in a charge before
a
federal administrative agency without pursuing private litigation, and insured
workers compensation claims (other than wrongful discharge claims), and claims
for unemployment insurance are excluded from arbitration under this
provision.
DISCLIVE:
Xxxxxx Xxxx Agreement
6
(b) Equitable
Remedies.
I agree
that it would be impossible or inadequate to measure and calculate the Company’s
damages from my breach of Sections 2,
3,
5, 6, 7 and 8
of this
Agreement. Accordingly, I agree that if I breach any such Section, the Company
will have available, in addition to any other right or remedy available, the
right to obtain an injunction from a court of competent jurisdiction restraining
such breach or threatened breach and to specific performance of any such
provision of this Agreement without limitation as to recovery of any and all
monetary damages that the Company may incur as a result of said breach or
threatened breach. Also, I understand and acknowledge that the Company may
pursue any remedy available, including, without limitation, declaratory relief,
concurrently or consecutively in any order as to any breach, violation, or
threatened breach or violation, and the pursuit of one such remedy at any time
will not be deemed an election of remedies or waiver of the right to pursue
any
other remedy. I further agree that no bond or other security shall be required
in obtaining such equitable relief, and I hereby consent to the issuance of
such
injunction and to the ordering of specific performance.
14. Compensation.
During
the course of my employment with the Company, I understand and agree that as
full and complete compensation for the services that I render to the Company,
I
will be paid (i) a bi-monthly payment of (U.S.) $2,500 (prorated for any partial
period) and (ii) twenty percent (20%) of any Net Recording Profits (hereinafter
defined) facilitated by me. “Net
Recording Profits”
means
the Net Profits (hereinafter defined) generated from the sale of the Company’s
products by the Company under a recording contract during the time period
beginning on the date that the Company enters into that recording contract
and
ending at the time that the Company’s employees or agents leave the final venue
at which a recording is made pursuant to that recording contract. “Net
Profits”
means
gross revenue less associated expenses. I further understand and agree that
all
payments for services rendered will be payable by the Company to me on a current
basis as services are rendered in accordance with regular payroll practices
of
the Company and that the payment of the percentage of Net Recording Profits
contemplated in this paragraph, if any, will be made on a regularly scheduled
pay period within thirty (30) days following the last recording made pursuant
to
that recording contract. I hereby understand and agree that all determinations
of whether or not a recording contract was facilitated by me shall be made
by
the President, or in case it so elects, by the Board of Directors, of the
Company and such determination shall be made in good faith.
15. General
Provisions.
(a) Governing
Law; Consent to Personal Jurisdiction.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF TEXAS, WITHOUT REGARD FOR CONFLICTS OF LAWS PRINCIPLES. I HEREBY
EXPRESSLY CONSENT TO THE PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS
LOCATED IN DALLAS, TEXAS FOR ANY LAWSUIT FILED THERE AGAINST ME BY THE COMPANY
CONCERNING MY EMPLOYMENT OR THE TERMINATION OF MY EMPLOYMENT OR ARISING FROM
OR
RELATING TO THIS AGREEMENT.
DISCLIVE:
Xxxxxx Xxxx Agreement
7
(b) Entire
Agreement.
This
Agreement sets forth the entire agreement and understanding between the Company
and me relating to the subject matter herein and supersedes all prior
agreements, discussions or representations between us, whether written or oral,
including, but not limited to, any representations made during my interview(s).
No modification of or amendment to this Agreement, nor any waiver of any rights
under this Agreement, will be effective unless in writing signed by the
Company’s Chief Executive Officer or President and me. Any subsequent change or
changes in my duties, salary or compensation will not affect the validity or
scope of this Agreement.
(c) Severability.
Except
as expressly set forth herein, if one or more of the provisions in this
Agreement are deemed void by law, including, but not limited to, the covenant
not to compete in Section 7,
then
the remaining provisions will continue in full force and effect.
(d) Successors
and Assigns.
This
Agreement, and the rights, benefits and interests hereunder, may not be
assigned, transferred or pledged by me in any way. The rights of the Company
hereunder may be assigned to any entity that succeeds to substantially all
of
the operations of the Company, including, without out limitation, by operation
of law.
(e) Construction.
The
language used in this Agreement will be deemed to be the language chosen by
the
parties to express their mutual intent and no rules of strict construction
will
be applied against either party.
(f) Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
enforceable, and all of which together shall constitute one and the same
agreement.
15. Voluntary
and Informed Acts.
I
hereby acknowledge and agree to each of the following items:
(a) I
am
executing this Agreement voluntarily and without any duress or undue influence
by the Company or anyone else; and
(b) I
have
carefully read this Agreement; I have asked any questions needed for me to
understand the terms, consequences and binding effect of this Agreement and
fully understand them; and
(c) I
have
had the opportunity to seek the advice of an attorney of my choice before
signing this Agreement, and have either obtained such advice or do not wish
to
seek it.
SIGNATURE
PAGE FOLLOWS
DISCLIVE:
Xxxxxx Xxxx Agreement
8
IN
WITNESS WHEREOF, the parties have executed this Agreement on the day, month
and
year first set forth below.
Date:
April 3, 2006
|
COMPANY:
|
EMPLOYEE:
|
|
|
DiscLive,
Inc.,
|
||
|
a
Delaware corporation
|
||
|
By:
/s/ XXXX XXXX
|
/s/
XXXXXX XXXX
|
|
|
Name:
Xxxx Xxxx
|
Xxxxxx
Xxxx
|
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Title:
President
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DISCLIVE:
Xxxxxx Xxxx Agreement
9
EXHIBIT
A
LIST
OF PRIOR INVENTIONS
AND
ORIGINAL WORKS OF AUTHORSHIP
|
Title
|
Date
|
Identifying
Number or Brief Description
|
||
__X__ No
inventions or improvements
____
Additional
Sheets Attached
Signature
of Employee:
/s/
XXXXXX
XXXX
Print
Name of Employee:
Xxxxxx
Xxxx
Date:
April
3, 2006
DISCLIVE:
Xxxxxx Xxxx Agreement
A-1
EXHIBIT
B
TERMINATION
CERTIFICATION
I
hereby
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
DiscLive, Inc. or its subsidiaries, affiliates, successors or assigns (together,
the “Company”).
I
hereby
certify that I have complied with all the terms of the Employment, Confidential
Information and Invention Assignment Agreement signed by me, including, but
not
limited to, the reporting of any Inventions or Other Inventions (as such terms
are defined therein).
I
hereby
confirm my agreements and obligations contained in Section 2
(Confidential
Information), Section 4 (Conflicting Employment), Section 5
(Solicitation
of Employees), Section 6
(Interference), Section 7
(Covenant Not to Compete) and Section 8 (Returning Company Documents, etc.)
of the Employment, Confidential Information and Invention Assignment Agreement
signed by me.
Date:
_________________
|
(Employee’s
Signature)
|
|
|
(Type/Print
Employee’s Name)
|
B-1
