Exhibit 10.2
EMPLOYMENT, CONFIDENTIALITY & INVENTION ASSIGNMENT AGREEMENT
FOR XXXXXXX X. XXXXX
This Employment, Confidentiality & Invention Assignment Agreement ("Agreement")
is made and entered into effective the 28th day of June, 1999, by and between
Integrated Telecom Express, Inc., having a principal place of business at 0000
Xxxxx Xxx, Xxxxx Xxxxx, XX 00000, and Xxxxxxx X. Xxxxx, whose address is 00000
Xxxxx Xx., Xxxxxxxx, XX, 00000 (hereinafter "Employee").
As a condition and in consideration of employment with Integrated Telecom
Express, Inc. ("ITeX"), its subsidiaries, affiliates, successors or assigns
(together the "Company"), Employee agrees:
1. This Employment, Confidentiality & Invention Assignment Agreement supersedes
the ITeX Consulting Agreement and the ITeX Consultant, Nondisclosure And Trade
Secret Agreement, both of which Employee previously entered with the Company on
May 5, 1999 (the "Consulting Agreements"). Effective on June 28, 1999, the
Consulting Agreements are terminated, and replaced by this Employment,
Confidentiality & Invention Assignment Agreement ("Agreement"). Notwithstanding
the termination of the Consulting Agreements, Employee agrees that his
obligations with respect to Confidential Information (as that term is defined in
the Consulting Agreements) disclosed or created prior to June 28, 1999 continue
as if the Consulting Agreements remained in force.
2. In consideration for entering this Agreement, all consulting fees earned by
Employee pursuant to the Consulting Agreements shall be and are payable in cash
rather than in cash and common stock, as originally contemplated, and Employee
will, and hereby does, surrender to ITeX all rights to common stock arising out
of the Consulting Agreements.
3. Employee is subject to the standard terms of employment at ITeX, as stated in
the ITeX Employee Handbook, as updated from time to time, and is eligible for
the various employee benefits described therein (including but not limited to
health/vision/dental insurance and participation in the 401(k) plan) pursuant to
the terms of those plans, as more fully described in the Employee Handbook and
the plan documents.
4. Subject to approval by ITeX's Board of Directors, Employee shall have the
title "President and Chief Executive Officer," until such time, if any, as that
title is changed by the Board of Directors or until Employee ceases to hold any
title at ITeX, whichever comes first.
5. AT-WILL EMPLOYMENT. EMPLOYEE AGREES AND UNDERSTANDS THAT, NOTWITHSTANDING
ANYTHING ELSE IN THIS AGREEMENT, EMPLOYMENT WITH ITeX IS FOR AN UNSPECIFIED
DURATION AND IS "AT-WILL" EMPLOYMENT, AND MAY BE TERMINATED BY EITHER ITeX OR BY
THE EMPLOYEE AT ANY TIME, WITH OR WITHOUT GOOD CAUSE OR FOR ANY OR NO CAUSE,
WITH OR WITHOUT NOTICE, AND THAT NO POLICY OR PROCEDURE OF ITeX NOR ANY VERBAL
REPRESENTATIONS SHALL CONFER ANY RIGHT TO CONTINUING EMPLOYMENT. EMPLOYEE
FURTHER UNDERSTANDS THAT NEITHER JOB PERFORMANCE, PROMOTIONS, ACCOMMODATIONS,
BONUSES NOR ANYTHING ELSE SHALL IMPLY AN OBLIGATION ON THE PART OF ITeX TO
CONTINUE EMPLOYMENT. EMPLOYEE SERVES AT THE PLEASURE OF THE BOARD OF DIRECTORS
OF ITeX.
6. Employee's starting base salary shall be $200,000 per year, paid in monthly
installments through regular payroll, and subject to standard deductions. In
addition, subject to the approval of ITeX's Board of Directors, Employee shall
be granted (in addition to the options previously granted in connection with
Employee's membership on ITeX's Board of Directors), 500,000 options for the
purchase of ITeX common stock, at a fair market price to be determined, in its
sole discretion, by the ITeX Board of Directors, as more fully described in the
Option Agreement entered concurrently herewith. In addition, upon the close of
ITeX's Initial Public Offering, if any, Employee will be paid a bonus in a lump
sum of $150,000 (subject to standard deductions.) THE FOREGOING DOES NOT IMPLY
ANY GUARANTEE THAT ITeX WILL HAVE AN INITIAL PUBLIC OFFERING WITHIN ANY
PARTICULAR TIMEFRAME, OR AT ALL, NOR THAT A MARKET WILL EXIST FOR ITeX COMMON
STOCK WITHIN ANY PARTICULAR TIMEFRAME, OR AT ALL.
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7. ITEX will be responsible for reasonable and actual travel and lodgings,
communications, and other out-of-pocket expenses (but not for a car allowance,
other than for rental vehicles while traveling on ITeX business) which are
reasonably necessarily incurred in the course of performing the Employee's
obligations to ITeX as contemplated by this Agreement, subject to reasonable
substantiation for the expense and business purpose. Expenses will be reimbursed
pursuant to ITeX's travel and entertainment reimbursement policy. All expense
items in excess of $100.00 shall be accompanied by an invoice or other receipt.
Employee shall advise ITEX in writing within twenty days of when Employee knew
or should have known of any underpayment or other dispute concerning any
payment, bonus, benefit or other compensation. In the absence of such timely
notice, no claims for such matters will be made, and Employee will not assert
any claims not timely made in the manner provided in this paragraph 5. In
connection with expenses incurred for travel, and notwithstanding anything to
the contrary in ITeX's travel and reimbursement policy, ITeX will reimburse
Employee for coach/economy class airfare for travel within the continental
United States prior to the conclusion of ITeX's Initial Public Offering (if any)
and first class or its equivalent (where available) thereafter; and for business
class or its equivalent (where available) airfare on travel other than within
the continental United States prior to the conclusion of ITeX's Initial Public
Offering (if any) and first class or its equivalent (where available)
thereafter.
8. Subject to its financial condition at the time, ITeX will, if requested by
Employee, provide or assist in arranging a secured loan to Employee commencing
on approximately July 15, 1999, in the amount of $450,000 for a period of 90
days at a market rate for a mutually agreeable purpose associated with the
business of ITeX, all pursuant to the terms of a Promissory Note to be
separately entered.
9. CONFIDENTIAL INFORMATION. At all times Employee will hold in confidence and
not use, except for the benefit of ITex, or disclose without prior written
authorization, any Company Confidential Information. "Confidential Information"
includes any and all proprietary information, trade secrets or know-how acquired
during employment either directly or indirectly in writing, orally or by
observation, provided that Confidential Information does not include matter
which became publicly known and generally available in a lawful manner. In
addition, Employee will not improperly use or disclose any proprietary
information or trade secrets of any former employer or of any other, nor bring
or keep any such information in any form on Company premises or property.
10. INVENTIONS.
(a) INVENTIONS RETAINED AND LICENSED. Employee has attached as EXHIBIT
A a list describing all inventions, original works of authorship, protectible
matter and trade secrets in which Employee holds rights and which are not
assigned to the Company (collectively "Prior Inventions"); if no such list is
attached, there are no such Prior Inventions. Employee grants the Company a
nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make,
have made, modify, use, sell, offer for sale, import, and otherwise distribute
any Prior Invention which Employee incorporates into any Company process,
product and/or property.
(b) ASSIGNMENT OF INVENTIONS. Employee will promptly make full written
disclosure and assign, and hereby does assign, to the Company, or its designees,
all right, title, and interest in and to any and all inventions, works of
authorship, protectible matter and trade secrets which Employee, during his
employment, may solely or jointly conceive or develop or reduce to practice, or
cause to be conceived or developed or reduced to practice (collectively
"Inventions"), except as provided in Section 10(e) below. All protectible works
of authorship which are made by Employee (solely or jointly with others) within
the scope of and during employment are "works made for hire," as that term is
defined in the United States Copyright Act.
(c) MAINTENANCE OF RECORDS. Employee will maintain adequate and current
written records of all Inventions, and these records will remain with and belong
to the Company.
(d) PATENT AND COPYRIGHT REGISTRATIONS. During and after employment,
Employee will cooperate fully to secure, register and enforce the Company's
rights in the Inventions in any and all countries, including without limitation
signing appropriate documents. In and under all circumstances in which Employee
fails to and/or cannot execute such documents, Employee irrevocably designates
and appoints the Company and its designees as his agent and attorney, to execute
and file any such applications and do all other acts to further the prosecution,
issuance and enforcement of such registrations and rights.
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(e) EXCEPTION TO ASSIGNMENTS. Employee understands that the provisions
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, but nevertheless will promptly advise the Company in writing
of any inventions that Employee believes meet the criteria of such Section.
(f) CONFLICT OF INTEREST, COMPANY EMPLOYEE MANUAL AND POLICY
GUIDELINES. During the term of employment, Employee will strictly adhere to the
requirements of the Company Employee Handbook, Conflict of Interest Guidelines
(attached), and all applicable Company guidelines and policies.
(g) RETURN OF COMPANY DOCUMENTS. Immediately upon the end of
employment, Employee will deliver to the Company (and will not keep in his
possession, recreate or deliver to anyone else) any and all tangible items and
reproductions of information developed by Employee pursuant to employment with
the Company or otherwise belonging to the Company, and will certify compliance
with this requirement in writing.
(h) NOTIFICATION. The Company may notify any third party, including
without limitation, any new or future employer, about Employee's rights and
obligations under this Agreement.
(i) SOLICITATION OF EMPLOYEES. During, and for a period of twelve
months immediately following, employment, Employee shall neither directly nor
indirectly solicit, induce, recruit or encourage any Company employees to leave
their employment, nor attempt or assist any others to do so.
11. ARBITRATION AND EQUITABLE RELIEF.
(a) ARBITRATION. Except as provided in Section 11(b) below, any and all
disputes or controversies arising out of, relating to, or concerning this
Agreement, shall be settled exclusively by arbitration to be held in Santa Xxxxx
County, California, in accordance with the rules then in effect of the Asia
Pacific Arbitration Association. The arbitrator may grant injunctions or other
relief in such dispute or controversy, and the arbitration shall include
provisions for protecting Company Confidential Information against disclosure.
The decision of the arbitrator shall be final, conclusive and binding on the
parties and judgment may be entered thereon in any court having jurisdiction.
The Company and Employee shall each pay one-half of the costs and expenses of
such arbitration, and each shall separately pay its own counsel fees and
expenses.
THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF EMPLOYEE'S RIGHT TO A
JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ANY AND/OR
ALL ASPECTS OF THE EMPLOYER/EMPLOYEE RELATIONSHIP (EXCEPT AS PROVIDED IN SECTION
11(B) BELOW), including, but not limited to, any and all claims for violation of
any federal, state or municipal statute, law and/or regulation, including, but
not limited to, Title VII of the Civil Rights Act of 1964, the Civil Rights Act
of 1991, the Age Discrimination in Employment Act of 1967, the Americans with
Disabilities Act of 1990, the Fair Labor Standards Act, the California Fair
Employment and Housing Act, and Labor Code Section 201, ET SEQ., except where
applicable law dictates that such claims are nonarbitrable.
(b) EQUITABLE REMEDIES. It would be impossible or inadequate to measure
and calculate the Company's damages from any breach of the covenants set forth
in sections 9 and/or 10. Thus, in addition to any other right or remedy and
without any requirement of a bond or security, if Employee breaches any of such
sections, the Company will be entitled to an injunction from a court of
competent jurisdiction restraining such breach or threatened breach and to
specific performance.
(c) CONSIDERATION. Each party's promise to resolve claims exclusively
by arbitration is consideration for other party's promise to do the same, and
Employee is offered employment in consideration of and based upon the promise to
arbitrate.
12. GENERAL PROVISIONS.
(a) GOVERNING LAW; CONSENT TO PERSONAL JURISDICTION. This Agreement
will be governed by the laws of the State of California, and Employee hereby
expressly consent to the personal jurisdiction of the courts located in Santa
Xxxxx County California for any lawsuit filed there against Employee by the
Company.
(b) ENTIRE AGREEMENT. This Agreement (and the concurrently entered
Option Agreement, the attached Conflict of Interest Guidelines, and the Employee
Handbook, as updated from time to time, as well as the surviving provisions of
the Consultant Agreements and, if entered, the Promissory Note) set forth the
entire agreement and understanding between the Company and Employee relating to
the subject matter herein and merges all prior discussions between them. No
modification of or amendment to this
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Agreement, nor any waiver of any rights under this Agreement, will be effective
unless in writing signed by the party to be charged. Any subsequent change or
changes in Employee's duties, salary or compensation will not affect the
validity or scope of this Agreement.
(c) SEVERABILITY. If one or more of the provisions in this Agreement
are deemed void by law, then the remaining provisions will continue in full
force and effect.
(d) SUCCESSORS AND ASSIGNS. This Agreement will be binding upon
Employee's heirs, executors, administrators and other legal representatives and
will be for the benefit of the Company, its successors, and its assigns.
/s/ Xxxxxxx X. Xxxxx /s/ [ILLEGIBLE]
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Employee Signature Company Signature
Date: 7/30/99 Print Employee Name: Xxxxxxx X. Xxxxx
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EXHIBIT A
LIST OF PRIOR INVENTIONS
& ORIGINAL WORKS OF AUTHORSHIP
Identifying Number
Title Date or Brief Description
X No inventions or improvements
---
Additional Sheets Attached
---
Signature of Employee: /s/ Xxxxxxx X. Xxxxx
Print Name of Employee: Xxxx Xxxxx
Date: 8/2/99
NOTICE: CALIFORNIA LABOR CODE SECTION 2870 EMPLOYMENT AGREEMENTS; ASSIGNMENT OF
RIGHTS PROVIDES:
"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
employee 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:
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.
Result from any work performed by the employee for the employer.
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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ATTACHMENT TO EMPLOYMENT, CONFIDENTIALITY AND INVENTION ASSIGNMENT AGREEMENT
CONFLICT OF INTEREST GUIDELINES
It is the policy of Integrated Telecom Express, Inc., 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/or 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.
i. 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, Confidential Information and Invention
Assignment Agreement elaborates on this principle and is a binding agreement.)
ii. Accepting or offering (other than inconsequential) gifts, excessive
entertainment, favors or payments which may be deemed to constitute undue
influence or otherwise be improper or embarrassing to the Company.
iii. Participating in civic or professional organizations that might
involve divulging confidential information of the Company.
iv. 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.
v. Initiating or approving any form of personal, social or other
harassment of employees.
vi. 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.
vii. Borrowing from or lending to employees, customers or suppliers.
viii. Acquiring any interest in real estate or other property of
interest to the Company.
ix. 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.
x. Unlawfully discussing prices, costs, customers, sales or markets
with competing companies or their employees.
xi. Making any unlawful agreement with distributors with respect to
prices.
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xii. improperly using or authorizing the use of any inventions which
are the subject of patent claims of any other person or entity.
xiii. Engaging in any conduct which is not in the best interest of the
Company.
xiv. Disclosing, tipping, and/or trading upon any material non-public
information.
xv. Engaging in any activity which is prohibited by the securities or
other applicable laws of the United States of America or any other jurisdiction
with authority over the action in any manner relating to and/or impacting 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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