EMPLOYMENT AGREEMENT
EXHIBIT
10.1c
THIS
EMPLOYMENT AGREEMENT (the “Agreement”), entered into this 2nd day of July, 2009,
by and between BLINDSPOT ALERT, INC., a Nevada corporation (the “Employer”), and
XXXXXX XXXX (“Employee”).
WITNESSETH
WHEREAS, the Employer desires
to employ, and Employee desires to work for Employer;
WHEREAS, the Employer desires
to provide fair and reasonable benefits to Employee on the terms and subject to
the conditions set forth in this Agreement; and
WHEREAS, the Employer desires
reasonable protection of their confidential business and customer information
which they will develop over the years at substantial expense and assurance that
Employee will not compete with the Employer for a reasonable period of time
after termination of his employment with the Employer, except as otherwise
provided herein.
NOW, THEREFORE, in
consideration of the foregoing premises, the mutual covenants
and undertakings herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties, each intending to be legally bound, covenant and agree as
follows:
1. Employment. Upon
the terms and subject to the conditions set forth in this Agreement, the
Employer employs Employee as the Employer’s Chief Operating Officer and Employee
accepts such employment.
2. Positions. Employee
agrees to serve as the Employer’s Chief Operating Officer and to perform such
duties in those offices as may reasonably be assigned to him by the Employer’s
Board of Directors, Chief Executive Officer or the President not inconsistent
with the nature of Employee’s position and such duties which are of the
character as those generally associated with such officer’s title.
3. Term. The
term of this Agreement shall begin on the date Employer purchases the software
assets of WQN, Inc. as more fully described in the Asset Purchase Agreement
between Employer and WQN, Inc. (the “Effective Date”) and shall end on the date
which is one (1) year following such date; provided, however, that such term
shall be extended automatically for an additional year on each anniversary of
the Effective Date, unless either party hereto gives sixty (60) days written
notice to the other party not to so extend prior to an anniversary (such term,
including any extension thereof shall herein be referred to as the
“Term”). Notwithstanding the foregoing, this Agreement shall
automatically terminate (and the Term of this Agreement shall thereupon end)
without notice when Employee attains 65 years of age.
4. Salary. Employee
shall receive an annual minimum salary of One Hundred and Fifty Thousand Dollars
($150,000.00) (“Base Compensation”) payable at regular intervals in accordance
with the Employer’s normal payroll practices in effect from time to
time. Employee shall be eligible to receive a bonus as determined by
Employer’s Board of Directors at their sole discretion. Additionally,
Employee will be eligible to participate in Employer’s stock option plan to the
same extent as other executives, officers and employees of Employer, and to
receive stock options thereunder in such amounts and at such times as the Board
of Directors may determine in its discretion.
5. Stock
Options. On the Effective Date, Employee shall receive 100,000
stock options in accordance with the Non-qualified Stock Plan that has been
adopted by the Employer. The options will vest over a 5 year term
with Twenty percent (20%) vesting at the end of each Twelve (12) month
period. The grant of the options shall be contained in the stock
option agreement.
6. Benefit
Programs. During the term of this Agreement, Employee shall be
entitled to participate in or receive benefits (collectively, the “Benefits”)
comparable to the other employees of the Employer, if such benefits are offered
by the Employer. The foregoing does not obligate the Employer to
provide benefits of any type.
7. General
Policies. All matters relating to the employment of Employee
by the Employer not specifically addressed in this Agreement shall be subject to
the general policies regarding employees of the Employer in effect from time to
time.
8. Termination. Subject
to the respective continuing obligations of the parties, Employee’s employment
by the Employer may be terminated prior to the expiration of the Term of this
Agreement as follows:
(a) The
Employer, by action of its Board of Directors and upon written notice to
Employee, may terminate Employee’s employment with the Employer for
cause. For purposes of this subsection 8(a),
“cause” shall be defined as (i) Employee’s personal dishonesty of a
material nature affecting Employee’s ability to perform his duties under this
Agreement, (ii) Employee’s incompetence in the performance of his duties
and obligations under this Agreement, (iii) Employee’s willful misconduct
or gross negligence, (iv) Employee’s breach of fiduciary duty involving personal
profit, (v) Employee’s intentional failure to perform stated duties,
(vi) Employee’s conviction of any criminal offense which involves
dishonesty or breach of trust or conviction of any felony, (vii) any
requirement of a government agency or authority having jurisdiction over the
Employer, or (viii) any material violation by Employee of any material
provision or covenant of this Agreement not cured by Employee within thirty (30)
days of Employee’s receipt of notice from the Employer of such material
violation.
(b) The
Employer, by action of its Board of Directors, may terminate Employee’s
employment with the Employer without cause at any time; provided, however, that
the “date of termination” for purposes of determining benefits payable to
Employee under subsection 9(b)
hereof shall be the date 90 days after Employee receives written notice of such
termination.
(c) Employee,
by written notice to the Employer, may terminate his employment with the
Employer immediately for good reason. For purposes of this subsection 8(c),
“good reason” shall be defined as any material violation by the Employer of any
material provision or covenant of this Agreement.
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(d) Employee’s
employment with Employer shall terminate in the event of Employee’s death or
disability. For purposes hereof, “disability” shall mean the physical or mental
inability of Employee to perform his obligations hereunder, provided that notice
of any termination by the Employer because of Employee’s “disability” shall have
been given to Employee prior to the full resumption by him of the performance of
such duties.
(e) Nothing
contained in this Agreement shall impair, affect or change any requirements
otherwise imposed upon the Employer or Employee by applicable statute, law,
rule, regulation or other legal requirement, including, without limitation,
Employee’s COBRA rights upon termination of employment.
9. Termination
Payments. In the event of termination of Employee’s employment
pursuant to Section
8 hereof, compensation shall continue to be paid to Employee as
follows:
(a) In
the event of termination pursuant to subsection 8(a) or
8(b), compensation provided for herein (including Base Compensation)
shall continue to be paid, and Employee shall continue to participate in the
benefit, retirement, and compensation plans and other perquisites as provided in
Sections 6 and
7 hereof, for a period of 3 months after the date set forth in the notice
of termination. Any benefits, if in place, payable under insurance,
health, retirement and bonus plans as a result of Employee’s participation in
such plans through such date shall be paid when due under those
plans.
(b) In
the event of termination pursuant to subsection 8(c),
compensation provided for herein (including Base Compensation) at the rate in
effect at the time of termination shall continue to be paid to Employee and
Employee shall continue to participate in the benefit, retirement and
compensation plans and other perquisites as provided in Sections 6 and 7
hereof, through the date of termination. Throughout the period during
which Employee’s compensation shall continue hereunder, the Employer shall
continue to contribute the employer portion toward the cost of such benefits and
other perquisites in a manner consistent with the applicable terms of the
governing plan documents and if applicable, insurance contracts, and otherwise
in accordance with the procedures and policies in place prior to such
termination through the date such payments, benefit coverages and perquisites
are to be continued hereunder. Payment of compensation during this
period, including Base Compensation, shall be made pursuant to the applicable
payroll practices then utilized by the Employer, and shall commence on the first
payroll payment date occurring after the date of termination of Employee’s
employment.
(c) In
the event of termination pursuant to subsection 8(d),
compensation provided for herein (including Base Compensation) shall continue to
be paid and Employee shall continue to participate in the benefit, retirement,
and compensation plans and other perquisites as provided in Sections 6 and 7
hereof in a manner consistent with the applicable terms of the governing plan
documents, (i) in the event of Employee’s death, through the date of death, or
(ii) in the event of Employee’s disability, through the date of proper notice of
disability as required by subsection
8(d). Any benefits payable under insurance, health, retirement
and bonus plans as a result of the Employer’s participation in such plans
through such date shall be paid when due under those plans.
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10. Notice of
Termination. Any termination of Employee’s employment with
Employer as contemplated by Section 8 hereof,
except in the circumstances of Employee’s death, shall be communicated by
written “Notice of Termination” by the terminating party to the other party
hereto. Any “Notice of Termination” pursuant to subsections 8(a), 8(c) or
8(d) shall indicate the specific provisions of this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for such termination.
11. Regulatory
Oversight. All obligations under this Agreement may be
terminated except to the extent determined that the continuation of the
Agreement is necessary for the continued operation of the Employer by order of
any state or federal regulatory agency with supervision of the Employer, unless
stayed by appropriate proceedings, and the Employer shall be under no obligation
to perform any of its obligations hereunder if it is informed in writing by any
state or federal regulatory agency with supervision of the Employer that
performance of its obligations would constitute an unsafe or unsound business
practice.
12. Death. Should
Employee die after termination of his employment with the Employer while any
amounts are payable to him hereunder, this Agreement shall inure to the benefit
of and be enforceable by Employee’s executors, administrators, heirs,
distributees, devisees and legatees and all amounts payable hereunder shall be
paid in accordance with the terms of this Agreement to Employee’s devisee,
legatee or other designee or, if there is no such designee, to his
estate.
13. Notices. For
purposes of this Agreement, notices and all other communications provided for
herein shall be in writing and shall be deemed to have been given when delivered
or mailed by United States registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
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If
to Employee:
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Xxxxxx
Xxxx
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0000
Xxxxxxxxxx Xxxx
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Xxxxxxxxxxx,
XX 00000
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If
to the Employer:
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Rowland
W. Day II
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Chief
Executive Officer
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0
Xxxxxxxxx Xxxxx
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Xxxxxxx
Xxxxx, XX 00000
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Facsimile: (000)
000-0000
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xxxx@xxxxxxx.xxx
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or to
such other address as either party hereto may have furnished to the other party
in writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
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14. Noncompetition. Employee
covenants that, commencing on Employee’s termination of employment and ending on
the date that is two years after Employee ceases to be an employee or consultant
to Employer or any of its subsidiaries (the “Noncompetion
Period”), Employee shall not, and shall cause its affiliates not to, in
any state in which the Employer or any of its subsidiaries currently conducts or
conducted its business (the “Territory”), engage,
either directly or indirectly, as a principal or for such Employee’s own account
or solely or jointly with others, or as a stockholder in any corporation or
joint sock association, in any business that competes with the businesses of the
Employer or any of its subsidiaries (“Compete”). The
foregoing shall not be breached as result of (i) such Employee ownership or
other right to acquire by Employee (or any of its affiliates) of not more than
an aggregate of one percent (1%) of any class of stock or other securities which
are listed on a nationally or internationally recognized stock exchange or
NASDAQ of a person engaged, directly or indirectly, in a business that competes
with the businesses of the Employer or any of its subsidiaries.
15. Non-Disparagement. Employee
covenants that such Employee shall not, and shall cause its affiliates not to
disparage or encourage or induce others to disparage the Employer or any of its
subsidiaries or affiliates or any of its or their past and present employees,
directors, products or services. For the purpose of this Agreement,
the term “disparage” includes, without limitation, comments or statements to the
press, media or to any third party with the intent to harm the character or
reputation of Employer, its affiliates, or any employee, consultant, agent,
director, distributor, independent contractor or multilevel
participant.
16. Cooperation. Upon
the receipt of reasonable notice by Employee (including notice on behalf of the
Employer by its outside counsel), Employee agrees that he will respond and
provide information with regard to matters in which he has knowledge as a result
of his ownership of and, or, and employment with Employer, and will provide
reasonable assistance to Employer and its subsidiaries and affiliates and their
respective representatives in defense of any claims that may be made against the
Employer or any of its subsidiaries or affiliates.
17. Employee Confidentiality and
Invention Assignment Agreement. Employee shall execute the
attached Employee Confidentiality and Invention Assignment Agreement which is
incorporated into this Agreement as Exhibit A.
18. Governing
Law. The validity, interpretation, and performance of this
Agreement shall be governed by the laws of the State of California, without
reference to the choice of law principles or rules thereof, except to the extent
that federal law shall be deemed to apply.
19. Modification. No
provision of this agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing signed by the Employer
and Employee. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a wavier of dissimilar provisions or conditions at the same or any prior
subsequent time. No agreements or representation, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement.
20. Validity. The
invalidity or unenforceability of any provisions of this Agreement shall not
affect the validity or enforceability of any other provisions of this Agreement
which shall remain in full force and effect.
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21. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
agreement.
22. Assignment. This
Agreement is personal in nature and neither party hereto shall, without consent
of the other, assign or transfer this Agreement or any rights or obligations
hereunder except as provided in Section 12
above. Without limiting the foregoing, Employee’s right to receive
compensation hereunder shall not be assignable or transferable, whether by
pledge, creation of a security interest or otherwise, other than a transfer by
his will or by the laws of descent or distribution as set forth in Section 12 hereof,
and in the event of any attempted assignment or transfer contrary to this
paragraph, Employer shall have no liability to pay any amounts so attempted to
be assigned or transferred.
23. Enforcement. If
any provision of this Agreement is invalid in part or in whole, it will be
deemed to have been amended, whether as to time, area covered or otherwise, as
and to the extent required for its validity under applicable law and, as so
amended, will be enforceable. The parties will execute all documents
necessary to evidence such amendment.
24. Arbitration. Any
controversy, dispute or claim of any nature whatsoever arising out of, in
connection with or in relation to this Agreement, or otherwise involving the
parties hereto, including the issue of arbitrability of any such disputes, will
be resolved by binding arbitration before a retired judge at JAMS in Santa Ana,
California. The prevailing party shall be awarded its arbitrator,
expert and attorney fees, costs and expenses. Any interim or final
award of the arbitrator may be entered in any court of competent
jurisdiction.
25. Document
Review. Employer and Employee hereby acknowledge and agree
that each (i) has read this Agreement in its entirety prior to executing it,
(ii) understands the provisions and effects of this Agreement, (iii) has
consulted with such attorneys, accountants and financial and other advisors as
it or he has deemed appropriate in connection with their respective execution of
this Agreement, and (iv) has executed this Agreement voluntarily and
knowingly. EMPLOYEE
HEREBY UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT HAS BEEN
PREPARED BY LEGAL COUNSEL TO THE EMPLOYER AND THAT HE HAS NOT RECEIVED ANY
ADVICE, COUNSEL OR RECOMMENDATION WITH RESPECT TO THIS AGREEMENT FROM SUCH
COUNSEL.
26. Entire Agreement This
Agreement and the Employee Proprietary Information and Inventions Agreement
dated as of the date hereof together with any understanding or modifications
thereof as agreed to in writing by the parties, shall constitute the entire
agreement between the parties hereto.
[Signature
page follows]
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IN
WITNESS WHEREOF, the parties have caused the Agreement to be executed and
delivered as of the date first written above.
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EMPLOYER:
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By:
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________________________________________
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Rowland
W. Day II,
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Chief
Executive Officer
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EMPLOYEE:
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_____________________________________________
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Xxxxxx
Xxxx
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EXHIBIT
A
EMPLOYEE
CONFIDENTIALITY
AND
INVENTION
ASSIGNMENT AGREEMENT
This Employee Confidentiality and
Invention Assignment Agreement (the “Agreement”) is entered into this 2nd day of
July, 2009 and is by and between Blindspot Alert, Inc. (the “Company”), and
Xxxxxx Xxxx (the “Employee”).
In consideration of my employment or
continued employment by the Company, and for other valuable consideration, the
receipt and sufficiency of which is hereby acknowledged. The parties
agree as follows:
1. Employee
Acknowledgement. Employee
understand that the purpose of this Agreement is to make clear that Employee
will (a) maintain the confidentiality of Company’s trade secrets; (b) that
Employee will use the Company’s trade secrets for the exclusive benefit of the
Company; (c) any inventions that Employee creates will be owned by the Company;
(d) any prior or continuing activities that Employee had or has, will be kept
separate from the Company and they will not conflict with the Company’s
development of its proprietary rights; and (e) when and if Employee’s employment
terminates with the Company, Employee will not use Employee’s prior position
with the Company to the detriment of the Company.
2. Protection of the Company’s
Confidential Information.
a. Confidential
Information. The
Company continually obtains, develops, compiles and owns certain proprietary and
confidential information that has great value in its business (“Confidential
Information”). Confidential Information includes all information
which is not generally known to the Company’s competitors and the public, and
which has or could have commercial value to the Company’s
business. It includes not only information disclosed by the Company
(or its customers, affiliates or vendors) to Employee during the course of
Employee’s employment with the Company, but also information developed or
learned by the Employee during the course of Employee’s employment with the
Company, such as Inventions, as defined below. Confidential
Information includes, but is not limited to, the following categories of
information: information regarding the Company’s technology, computer
programs, computer codes, products, product specifications, techniques,
inventions, discoveries, improvements, methods, research, test results, or
know-how; information regarding the Company’s customers’ and vendors’
identities, characteristics, performance and agreements; information regarding
the Company’s affiliates’, sub-affiliates’ and employees’ characteristics,
performances and agreements; and information regarding the Company’s marketing,
multilevel marketing business sales and business plans, strategies, forecasts,
unpublished financial information, budgets, projections, and
efforts. Employee acknowledges that such information is secret,
valuable and owned by the Company and that the Company has exercised substantial
efforts to preserve the information’s secrecy.
b. Protection of Confidential
Information. During
and after Employee’s employment, Employee agrees to keep confidential, and not
to disclose to any third party or to make any use of Confidential Information of
the Company, except for the benefit of the Company and in the course of
Employee’s employment with the Company. Employee also agrees not to
remove or otherwise transmit Confidential Information or Inventions (as defined
below) from the premises or possession of the Company without the express prior
written consent of an authorized representative of the
Company. Employee acknowledges that he or she is aware that the
unauthorized disclosure of Confidential Information of the Company may be highly
prejudicial to its interests, an invasion of privacy, and an improper disclosure
of trade secrets.
c. Third Party
Information. Employee recognizes that the Company
has received and in the future will receive confidential or proprietary
information from third parties 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. Employee agrees to hold all such confidential or
proprietary information in the strictest confidence and not to disclose it to
any person, firm or corporation and to use it as necessary in carrying out work
for the Company consistent with the Company's agreement with such third
party.
d. Prior
Obligations. Employee
acknowledges and represents that Employee is not a party to any agreement or
agreements (e.g., non-competition agreements, non-solicitation of customers
agreements, non-solicitation of employees agreements, confidentiality
agreements, inventions agreements, etc.) with a former employer, or any other
person or entity, that may restrict Employee’s ability to recruit or engage
customers or service providers on behalf of the Company, or otherwise relate to
or restrict Employee’s ability to perform any obligation or responsibility
Employee may have to the Company. Employee represents and warrants
that Employee has returned all property and confidential information belonging
to all prior employers.
e. Exclusive Employment and
Non-Solicitation of Customers, Affiliates, Sub-Affiliates or Employees.
Employee acknowledges the highly confidential nature of information regarding
the Company’s customers, affiliates, sub-affiliates, employees, agents,
independent contractors, suppliers, and consultants. The Employee
will not during Employee’s employment or within one year after it ends, without
the Company’s express written consent, directly or indirectly (i) hire, solicit,
recruit, or induce to leave the employ of the Company any employee, agent,
independent contractor or consultant of the Company; (ii) use the Company’s
Confidential Information to solicit the business of any clients or customers of
the Company (other than on behalf of the Company); or (iii) encourage to
terminate or alter any relationship between (a) the Company, and (b) any
customer, affiliate, sub-affiliate, employee, agent, independent contractor,
supplier, consultant, or any other person or company. During
Employee’s employment with the Company, Employee will not do anything to compete
with the Company’s present or contemplated business, nor will Employee plan or
organize any competitive business activity. The Employee agrees that
such activities would necessarily and inevitably involve disclosure or use of
Confidential Information in violation of this Agreement.
f. Prior Inventions and
Proprietary
Information. Except
as disclosed on Exhibit A to this Agreement, Employee does not know anything
about the Company’s Confidential Information, other than that which he or she
learned from the Company. Employee also has disclosed on Exhibit A-1
complete list of all Inventions and information proprietary to Employee and
which Employee wants to exclude from the application of this
Agreement.
3. Inventions.
a. Disclosure of
Inventions. Employee
will promptly disclose in writing and deliver to the Company within 10 days of
all discoveries, developments, designs, enhancements, ideas, improvements,
inventions, software, object codes, source codes, formulas, processes,
techniques, know-how, and data (whether or not patentable or registrable under
copyright or similar statutes) made, conceived, reduced to practice, or learned
by Employee (either alone or jointly with others) during each month of
Employee’s employment, that are related to or useful in the business of the
Company, or which result from tasks assigned to Employee by the Company, or from
the use of premises owned, leased, or otherwise acquired by the
Company. For the purposes of this Agreement, all of the foregoing are
referred to as Inventions.
b. Assignment/Ownership of
Inventions. Employee
acknowledges and agrees that all Inventions other than those listed in Exhibit A
belong to and shall be the sole property of the Company and shall be Inventions
of the Company subject to the provisions of this Agreement. Employee
assigns to the Company all right, title, and interest Employee may have or may
acquire in and to all Inventions. Employee agrees to sign and deliver
to the Company (either during or subsequent to Employee’s employment) such other
documents as the Company considers desirable to evidence the assignment of all
rights of Employee, if any, in any Inventions to the Company and the Company’s
ownership of such Inventions. Any provision in this Agreement
requiring Employee to assign rights to an Invention does not apply to any
invention that qualifies under California Labor Code §2870, which section is
reproduced in the attached Written Notification to Employee (Exhibit
B-1).
c. Power of
Attorney. In
the event the Company is unable to secure Employee’s signature on any document
necessary to apply for, prosecute, obtain, or enforce any patent, copyright, or
other right to protection relating to any Invention, whether due to mental or
physical incapacity or any other cause, Employee hereby irrevocably designates
and appoints the Company and each of its duly authorized officers and agents as
Employee’s agent and attorney-in-fact, to act for and in Employee’s behalf and
stead to execute and file any such document and to do all other lawfully
permitted acts to further the prosecution, issuance, and enforcement of patents,
copyrights, or other rights or protections with the same force and effect as if
executed and delivered by the Employee.
4. Termination of
Employment.
a. Delivery of Documents and
Data Upon Termination of Employment.
In the
event of termination (voluntary or otherwise) of Employee’s employment with the
Company, Employee agrees, promptly and without request, to deliver to and inform
the Company of all documents and data pertaining to Employee’s employment and
the Confidential Information and Inventions of the Company, whether prepared by
the Employee or otherwise coming into Employee’s possession or control, and to
sign Exhibit C-1 to this Agreement. Employee will not retain any
written or other tangible material containing any information concerning or
disclosing any of the Confidential Information or Inventions of the
Company. Employee recognizes that the unauthorized taking of any of
the Company’s trade secrets is a crime under California Penal Code § 499(c) and
is punishable by imprisonment in state prison or in a county jail for a time not
exceeding one year, or by a fine not exceeding five thousand dollars ($5,000),
or by both such fine and such imprisonment. Employee further
recognizes that such unauthorized taking of the Company’s trade secrets also
could result in civil liability under California’s Uniform Trade Secret Act
(Civil Code §§ 3426-3426.11), and that willful misappropriation may result in an
award against Employee for triple the amount of the Company’s damages and the
Company’s attorney’s fees in collecting such damages.
b. Obligations of Employee
After Termination of
Employment. In
the event of termination (voluntary or otherwise) of Employee’s employment with
the Company, Employee will protect the value of the Confidential Information and
Inventions of the Company and will prevent their misappropriation or
disclosure. Employee will not disclose or use to Employee’s benefit
(or the benefit of any third party) or to the detriment of the Company any
Confidential Information or Invention.
5. Injunctive
Relief. Because
Employee’s breach of this Agreement may cause the Company irreparable harm for
which money is inadequate compensation, Employee agrees that the Company will be
entitled to seek extraordinary relief in court, including but not limited to
temporary restraining orders, preliminary injunctions and permanent injunctions
without the necessity of posting a bond or other security and in addition to and
without prejudice to any other rights or remedies that the Company may have for
a breach of this Agreement.
6. Attorney’
Fees. If
any action is necessary to enforce this Agreement, the prevailing party shall be
entitled to recover its attorneys’ fees.
7. Amendment and Binding
Effect. This
Agreement may not be amended except by an instrument in writing signed by both
parties. This Agreement shall be binding on the heirs, executors,
administrators, and other legal representatives and assigns of Employee, and is
for the benefit of the Company and its successors and assigns.
8. Governing
Law. This
Agreement shall be governed by the laws of the State of California.
9. Entire
Understanding. This Agreement expresses the entire understanding of
the parties about the described subject matter, superseding all prior or
contemporaneous oral or written agreements and understanding between the parties
with respect to the subject matter.
10. Cumulative
Remedies. Each
and all of the several rights and remedies provided for in this Agreement shall
be cumulative. No one right or remedy shall be exclusive of the
others or of any right or remedy allowed in law or in equity. No
waiver or indulgence by the Company of any failure by Employee to keep or
perform any promise or condition of this Agreement shall be a waiver of any
preceding or succeeding breach of the same or any other promise or
condition. No waiver by the Company of any right shall be construed
as a waiver of any other right. Any waiver by the Company or by the
Employee must be in writing and signed by both the Employee, if he or she is
seeking to waive any of Employee’s rights under this Agreement, or by an officer
of the Company (other than the Employee) or some other person duly authorized by
the Company. The Company shall not be required to give notice to
enforce strict adherence to the terms of this Agreement.
11. Severability. If
a court finds any provision of this Agreement invalid or unenforceable as
applied to any circumstance, the remainder of this Agreement and the application
of such provision to the other persons or circumstances shall be interpreted so
as best to effect the intent of the parties hereto. The parties
further agree to replace any such void or unenforceable provision of this
Agreement with a valid and enforceable provision that will achieve, to the
extent possible, the economic, business, and other purposes of the void or
unenforceable provision.
12. Employment
Terms. Employee
understands that this Agreement is an integral part of Employee’s contract of
employment with the Company.
13. ADVICE OF
COUNSEL. EMPLOYEE ACKNOWLEDGES THAT, IN EXECUTING THIS
AGREEMENT, EMPLOYEE HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT
LEGAL COUNSEL AND EMPLOYEE HAS READ AND UNDERSTANDS ALL OF THE TERMS AND
PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY
PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
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EMPLOYEE
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By:_________________________________________
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By:________________________________________
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Name:______________________________________
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Name:______________________________________
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Its:_________________________________________
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Date:_______________________________________
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Date:_______________________________________
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EXHIBIT
A-1
EMPLOYEE
STATEMENT
1. Confidential
Information. Except
as set forth below, I acknowledge at this time that I know nothing about the
business or the Confidential Information or Inventions of the Company, except
information that has been disclosed to me by the Company (if none, so
state): [specify information previously known about the
Company].
2. Prior
Inventions. Except
as set forth below, I acknowledge at this time that I have not made or reduced
to practice, alone or jointly with others, any Inventions (if none, so state):
[specify inventions].
3. Conflicting
Relationships. Except
as set forth below, I acknowledge that I have no other current or prior
agreements, relationships, or commitments that conflict with my relationship
with the Company under my Confidentiality and Invention Assignment Agreement (if
none, so state): [specify any conflicts].
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Date:________________________________________
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________________________________________
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Employee’s
signature
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Name:___________________________________
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EXHIBIT
B-1
WRITTEN
NOTIFICATION TO EMPLOYEE
In accordance with California Labor
Code §2872, you are hereby notified that your Confidentiality and Invention
Assignment Agreement does not require you to assign to the Company an Invention
for which no equipment, supplies, facility, or trade secret information of the
Company was used and that was developed entirely on your own time, and does not
relate to the business of the Company or to the Company’s actual or demonstrably
anticipated research or development, or does not result from any work performed
by you for the Company.
Following is the text of California
Labor Code §2870:
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(a)
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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:
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(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.
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(b)
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To
the extent a provision in an employment agreement purports to require an
employee to assign his 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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I hereby acknowledge receipt of this
written notification.
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Date:________________________________________
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________________________________________
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Employee’s
signature
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Name:____________________________________
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EXHIBIT
C-1
TERMINATION
CERTIFICATION
This is to certify that I do not have
in my possession, nor have I failed to return, any Confidential Information (as
defined in my Confidentiality and Invention Assignment Agreement with the
Company (the “Agreement”) or copies of such information, or other documents or
materials, equipment, or other property belonging to the Company.
I further certify that I have complied
with and will continue to comply with all of the terms of the Agreement,
including the reporting of any Inventions (as defined in the Agreement)
conceived or made by me that are covered by the Agreement.
I agree that, in compliance with the
Agreement, I will preserve as confidential and not use any Confidential
Information, Inventions, or other information that has or could have commercial
value or other utility in the business in which the Company is engaged or in
which it contemplates engaging. I will not participate in the
unauthorized disclosure or use of information that could be detrimental to the
interests of the Company, whether or not such information is identified as
Confidential Information by the Company.
I further agree that for twelve (12)
months from the date of this Certificate, I shall not either directly or
indirectly solicit, induce, recruit or encourage any of the Company's employees
or consultants to terminate their relationship with the Company, or attempt to
solicit, induce, recruit, encourage or take away employees or consultants of the
Company, either for myself or for any other person or entity. Further, I shall
not at any time use any Confidential Information of the Company to negatively
influence any of the Company's clients or customers from purchasing Company
products or services or to solicit or influence or attempt to influence any
client, customer or other person either directly or indirectly, to direct his or
its purchase of products and/or services to any person, firm, corporation,
institution or other entity in competition with, the business of the
Company.
On termination of my employment with
the Company I will be employed by _____________________, and will be working in
connection with the following listed projects:
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Date:________________________________________
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________________________________________
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Employee’s
signature
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Name:_____________________________________
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