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EXHIBIT 10.7
[VENTRO LOGO]
CONSULTANT AGREEMENT
This Agreement is made and entered into as of the first day of December,
2000, by and between Ventro Corporation, a Delaware corporation, having its
principal office at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx, 00000,
("Ventro"), and Xxxxxx Xxxxx. ("Consultant")
1. SERVICES, PAYMENT AND TERM. Consultant shall provide Ventro and all other
affiliated companies with the Services, and Ventro shall pay for the
Services, for such term, per the attached Exhibit A.
2. CONFIDENTIAL AND PROPRIETARY INFORMATION.
(a) Consultant acknowledges that his Employee Confidentiality Agreement
effective during the term of employment at Ventro, as attached hereto
as Exhibit B, shall remain in effect for the duration of this
Consulting Agreement.
3. RELATIONSHIP OF CONSULTANT TO VENTRO.
(a) Consultant is an Independent Contractor and is solely responsible for
all taxes, withholdings and other similar statutory obligations,
including, but not limited to, Workers' Compensation Insurance.
Consultant has no authority to act on behalf of or to enter into any
contract, incur any liability or make any representation on behalf of
Ventro.
(b) Consultant understands and agrees that it shall not be treated as an
employee of Ventro or any of its affiliates for any purpose,
including for purposes of receiving certain fringe benefits provided
by Ventro, which are excluded from an employee's income, and thus are
not subject to tax. These benefits are statutory exclusions provided
under Internal Revenue Code Sections 79 (relating to group term life
insurance), 101(b) relating to employee death benefits), 104, 105,
and 106 (relating to employee accident and health plans), 120
(relating to group legal services plans), 127 (relating to
educational assistance plans) and under those portions of subtitle A
relating to contributions to or under a pension or profit sharing
plan, including with respect to distributions under such plan or by a
trust forming part of such plan.
(c) Also, Consultant understands and agrees that it shall not be treated
as an employee for purposes of laws providing for disability income,
social security taxes and benefits, and Federal Withholding at
sources. Furthermore, Consultant understands and agrees that it shall
not be treated as an employee for purposes of certain benefits that
include, but are not limited, to leaves of absences, sick leave,
disability, vacations and tuition assistance.
4. COMPLIANCE WITH LAWS. Consultant agrees to comply with all applicable
federal, state, county and local laws, ordinances, regulations and codes
in the performance of its obligations under this Agreement, including but
not limited to the procurement of permits and certificates where required.
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5. COMPLIANCE WITH EQUAL OPPORTUNITY AND NON-DISCRIMINATION LAWS. Consultant
agrees that this Agreement is subject to applicable federal, state and
local laws, regulations and executive orders relating to equal opportunity
and non-discrimination in employment. Neither Consultant nor its agents
and subcontractors shall discriminate in their employment practices
against any person by reason of race, religion, color, sex or national
origin. Consultant agrees to comply and to cause its agents and
subcontractors to comply, with the provision of said laws, orders and
regulations, as well as other laws, orders and regulations relating to any
other legally protected category or class, and to the employment of the
handicapped, the employment of veterans, and the use of minority business
enterprises, to the extent any such laws, orders and regulations are
applicable in the performance of their work or furnishing of services
hereunder. For the purpose of this Agreement, the provisions of such laws,
orders and regulations shall be deemed an integral part of this Agreement.
6. TAXES. Consultant shall be solely liable for (i) any and all federal,
state and local taxes based on or measured by Consultant's income or
receipts, including sales and use taxes; and (ii) Self Employment
Contributions Act ("SECA") taxes.
Consultant shall be solely liable for any and all Federal Insurance
Contributions Act ("FUTA") and State Unemployment Insurance ("SUI")
contributions. Consultant shall withhold at source applicable federal,
state and local income taxes, and employee's share of FICA.
Ventro shall have no liability for and no obligation to withhold at
source any federal, state or local income tax, or Consultant's portion of
FICA; provided, however, that nothing contained in this Agreement shall
prevent Ventro from imposing backup withholding tax as required by law or
regulations on reportable payments to non-exempt contractors, or from
withholding tax on United States source payments to non-United States
persons as required by applicable law or regulations. For purposes of this
Agreement, "Taxes" shall mean federal, state and local income taxes, FICA,
FUTA, SECA, SUI and withholding taxes.
Consultant shall timely file all applicable Tax returns, including income
tax returns, employment tax returns and information returns required by
law, in a manner consistent with its status as an Independent Contractor
of Services and as employer of individual personnel assigned under this
Agreement. Consultant shall make all required payments and deposits of
Taxes in a timely manner.
Consultant shall cooperate fully in the defense of any claim by any
federal, state or local government authority against Ventro and any of its
subsidiaries or affiliates, regarding Taxes assessed with respect to
Consultant or any individual assigned by Consultant to provide Services
under this Agreement. Without limiting the foregoing, and only upon
Ventro providing evidence of said tax audit initiated by a government
authority, Consultant shall, upon request by Ventro, promptly furnish to
said government authority upon request by Ventro (only as relating to
Consultant's employment hereunder), (i) documentary evidence of income
tax returns and other filings, and (ii) proof of payment of Taxes by
Consultant.
Consultant shall indemnify and hold Ventro and its subsidiaries and its
affiliates harmless from and against (i) all taxes, additions to tax,
penalties and interest thereon assessed by any federal,
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state or local governmental authority against Ventro and its subsidiaries
or affiliates and (ii) all liabilities, costs and expenses including
reasonable attorneys fees incurred in the defense of any such assessment.
This Section 6 shall survive this Agreement and remain in effect until the
statute of limitations including extensions thereof for all claims by
federal, state or local government authorities against Ventro and its
subsidiaries and affiliates for Taxes expire.
7. GENERAL PROVISIONS.
(a) PARAGRAPH HEADINGS. Paragraph headings are for convenience only and
shall not be a part of the terms and conditions of this Agreement.
(b) WAIVER. Failure by either party at any time to enforce any obligation
by the other party, to claim a breach of any term of this Agreement
or to exercise any power agreed to hereunder will not be construed
as a waiver of any right, power or obligation under this Agreement,
will not affect any subsequent breach, and will not prejudice either
party as regards any subsequent action.
(c) SEVERABILITY. If any term or provision of this Agreement should be
declared invalid by a court of competent jurisdiction, the remaining
terms and provisions of this Agreement shall remain unimpaired and in
full force and effect.
(d) SUBCONTRACTORS. Ventro reserves the right of approval of all
subcontractors who will service Ventro; such approval will not be
unreasonably withheld by Ventro. Approval of any subcontractor shall
not constitute the superseding or waiver of any right of Ventro or
the Consultant to reject work that is not in conformance with its
standards or this Agreement. Consultant shall be fully responsible
for all acts and omissions of its subcontractors. Nothing in this
Agreement shall be construed to create any contractual relationship
between Ventro and any subcontractor, nor any obligation on the part
of Ventro to pay or to see the payment of any money due any
subcontractor, except as may otherwise be required by law.
(e) ASSIGNMENT. This Agreement may not be assigned, in whole or in part,
by either party hereto without the prior written consent of the
other party, which consent shall not be unreasonably withheld.
Nothing contained herein shall prevent the use by, or the assignment
of this Agreement by Ventro to its parent, any of its subsidiaries or
affiliates, or any successor in interest who agrees to be bound by
the terms and conditions of this Agreement.
(f) MODIFICATION. No modification, waiver or amendment of any term or
condition of this Agreement shall be effective unless and until it
shall be reduced to writing and signed by both of the parties hereto
or their legal representatives.
All legally required Amendments will automatically become part of
this Agreement thirty (30) days after notification to both parties.
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(g) SURVIVAL. In addition to those provisions of this Agreement which by their
terms survive the expiration or termination of this Agreement, the
provisions of this Agreement which by their nature and content are
intended to survive the performance hereof, shall so survive the
completion or termination of this Agreement.
(h) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California as if the Agreement
were made in California for performance entirely within the State of
California.
(i) COMPLETE AGREEMENT. This Agreement, together with all Exhibits,
Attachments, and Appendices hereto is the entire Agreement and expresses
the complete understanding of the parties with regard to the subject
matter herein and may not be altered, amended or modified except in a
writing incorporated hereto, and signed by the parties. A waiver of any
portion of this Agreement shall not be deemed a waiver or renunciation of
other portions. There are no other agreements either express or implied
with regard to the subject matter of this Agreement.
(j) NOTICES. Any notice required or permitted to be given by either party
under this Agreement shall be in writing and shall be personally delivered
or sent by certified or registered letter, by telecopy, by a courier
service, or by electronic mail to the other party at its address first set
forth above, or such new address as may from time to time be supplied by
the parties. If mailed, notices will be deemed effective three (3) working
days after deposit, postage prepaid, in the mail. If sent by telecopy,
courier, or electronic mail, notices will be deemed effective upon
confirmation of receipt by addressee. A copy of any notice must also be
sent to Ventro's General Counsel:
(k) In case of any conflict between the Termination of Employment Agreement
and Release and this Consultant Agreement, the Termination of Employment
Agreement and Release shall prevail. In case of any conflict between the
Employee Confidentiality Agreement and this Consulting Agreement, the
Employee Confidentiality Agreement shall prevail.
General Counsel
Ventro Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written.
VENTRO CORPORATION XXXXXX XXXXX
/s/ XXXXX XXXXXX /s/ XXXXXX XXXXX
-------------------------------------- -------------------------------------
Signature Signature
Xxxxx Xxxxxx
--------------------------------------
Printed Name
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EXHIBIT A
SEE TERMINATION AND EMPLOYMENT AGREEMENT AND RELEASE
----------------------------------------------------
FOR XXXXXX XXXXX ATTACHED
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TERMINATION OF EMPLOYMENT AGREEMENT
AND RELEASE
TERMINATION OF EMPLOYMENT AGREEMENT AND RELEASE, dated as of October 31,
2000 by and between Ventro Corporation, a Delaware corporation (the "Company"),
and Xxxxxx Xxxxx ("EXECUTIVE").
WHEREAS, the Company and Executive entered into an employment agreement
dated as of March 6, 2000 (the "EMPLOYMENT AGREEMENT");
WHEREAS, Executive desires to terminate Executive's employment with the
Company effective December 1, 2000, subject to the terms and conditions set
forth below;
WHEREAS, the Company desires to have the benefit of Executive's services
and expertise to perform consulting services for the Company during the next
twelve months;
WHEREAS, the parties wish to enter into this Agreement to clarify their
relationship in the future;
NOW, THEREFORE, in consideration of the mutual promises and agreements
hereinafter set forth, the Company and Executive agree as follows:
1. Resignation. Executive resigns, effective as of December 1, 2000 (the
"RESIGNATION DATE") from Executive's position as Executive Vice President,
Chief Technology Strategist of the Company and from all other positions which
Executive holds with the Company, its subsidiaries or its affiliates and the
Company accepts such resignations.
2. Consulting. Executive has expressed his desire to begin a consulting
business and the Company consents to and supports Executive's plans. Executive
agrees to provide consulting services to the Company, as an independent
contractor and not as an employee, during the period from the Resignation Date
to and including December 31, 2001 (the "CONSULTING TERM"), provided that
Executive shall not be required to provide such services to the Company in
excess of 25 hours per month, or an aggregate of 300 hours during the Consulting
Term. Executive shall not receive compensation (other than as set forth in
paragraph 3 below) for consulting services during the Consulting Term that are
performed within the hourly limitations set forth in the immediately preceding
sentence, but the Company will reimburse Executive on a monthly basis for all
reasonable, documented out-of-pocket expenses incurred in connection with the
performance of consulting services. Any consulting services provided in excess
of the hourly
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limitations set forth above will be compensated by the Company at hourly rates
agreed between Executive and the Company.
3. Payments to Executive. (a) The Company agrees to pay to Executive
$325,000, at the rate of $25,000 per month, less all applicable Federal, State
and local withholding taxes, during the Consulting Term.
(b) The Company's obligations to (i) make any payments pursuant to this
Section 3 and (ii) provide benefits pursuant to Section 4, are expressly
conditioned on Executive's continued compliance with the provisions of this
Agreement and the Employee Confidentiality and Inventions Agreement referred to
in paragraph 9 below.
4. Other Benefits. (a) The Company agrees to pay Executive, within
thirty (30) days following the Resignation Date, for unused and accrued
vacation and personal leave at the rate of Executive's base compensation in
effect on the date hereof.
(b) The Company agrees to continue Executive's coverage under the
Company's medical and health plans, in the same amount and to the same extent
to which Executive was covered, and at the same cost to Executive in effect,
immediately prior to the Resignation Date, for a period of 60 days following
the Resignation Date. Notwithstanding the foregoing, Executive shall have the
same rights to convert health and life insurance coverage provided to him by
the Company as employees participating in such plans have on the date
Executive's coverage under such plans ceases, including exercising health care
continuation rights in accordance with Section 4980B of the Internal Revenue
Code of 1986, as amended.
(c) All stock options previously granted to Executive under the Company's
Stock Option Plan that would have vested during the Consulting Term shall vest
in full on the Resignation Date, and all unvested options will be cancelled in
full effective on such date. All options will be exercisable by Executive on
the terms set forth in the option agreement between Executive and the Company.
5. Release. (a) Executive agrees to and does fully and completely
release, discharge and waive any and all claims, complaints, causes of action
or demands of whatever kind which Executive has or may have against the
Company, its subsidiaries, affiliates, predecessors and successors and all its
officers and employees by reason of any event, matter, cause or thing which has
occurred prior to the Resignation Date (hereinafter "EXECUTIVE CLAIMS").
Executive understands and accepts that this Agreement specifically covers, but
is
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not limited to, any and all Executive Claims which Executive has or may have
against the Company relating to any way to the Employment Agreement or to
compensation, or to any other terms, conditions or circumstances of Executive's
former employment with the Company, and to the resignation of such employment,
whether for severance or based on statutory or common law claims for employment
discriminating (including age discrimination), wrongful discharge, breach of
contract or any other theory, whether legal or equitable. Notwithstanding the
foregoing, Executive does not waive any rights which Executive may be entitled
(i) to seek to enforce this Agreement, or (ii) to seek indemnification with
respect to liability incurred by Executive as an officer of the Company.
(b) Executive acknowledges that this Release shall extend to unknown, as
well as known claims, and hereby waives the application of any provision of
law, including, without limitation, Cal. Civ. Code Section 1542 (West 1982 &
2000 Supp.), that purports to limit the scope of a general release. Section
1542 of the California Civil Code provides:
"A general release does not extend to claims which
the creditor does not know or suspect to exist in his
favor at the time of executing the release, which if
known by him must have materially affected his
settlement with the debtor."
Illegible Initials
------------------
Initial Here
(c) The Company agrees to and does fully and completely release, discharge
and waive any and all claims, complaints, causes of action or demands of
whatever kind which the Company has or may have against Executive by reason of
any event, matter, cause or thing which has occurred prior to the Resignation
Date (hereinafter "COMPANY CLAIMS") except any specific matters which are
founded upon and directly related to allegations of malfeasance in office. The
Company understands and accepts that this Agreement specifically covers, but is
not limited to, any and all Company Claims which the Company has or may have
against Executive relating in any way to the Employment Agreement or to
compensation, or to any other terms, conditions or circumstances of Executive's
former employment with the Company, and to the resignation of such employment,
whether based on statutory or common law claims for breach of contract or any
other theory, legal or equitable. Notwithstanding the foregoing, the Company
does not waive any rights to which it may be entitled to seek to enforce this
Agreement or the Employee Confidentiality and Inventions Agreement.
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6. Confidentiality; No Disparagement. (a) Executive agrees not to cause
or participate in the publication of any information concerning the facts
underlying the termination of Executive's employment with the Company or the
terms and conditions of this Agreement to anyone. This provision shall not
prevent Executive from disclosing such information to Executive's legal counsel
and accountants in order to obtain professional advice; provided that they are
advised as to and agree to observe the confidentiality of such information.
(b) Executive agrees that he shall not make negative statements or
representations, or otherwise communicate negatively, directly or indirectly, in
writing, orally, or otherwise, or take any action which may, directly or
indirectly, disparage or be damaging to the Company, its subsidiaries,
affiliates, successors or their officers, directors, employees, business or
reputation. From and after the Resignation Date, the Executive may communicate
directly with Mr. Xxxxxx Xxxxxx regarding any matters relating to the Company
and this Agreement.
(c) The Company agrees that it shall not, and shall not authorize any
officer, agent, employee or other representative of the Company to, make
negative statements or representations, or otherwise communicate negatively,
directly or indirectly, in writing, orally or otherwise, concerning Executive's
performance of his duties while employed by the Company, his resignation of
employment with the Company or the terms and conditions of this Agreement to
anyone (other than the Company's legal counsel and accountants), or in
connection therewith take any action which may, directly or indirectly, in any
way disparage or be damaging to Executive.
7. Company Customers and Employees. (a) Executive agrees that at no time
during the Consulting Term will Executive directly or indirectly, while engaged
in any business which directly or indirectly in competition with any line of
business conducted by the Company, its subsidiaries or its affiliates, solicit
business from or engage in the sale of goods to or performance of services for
any person who is a client of the Company, or any of its subsidiaries or its
affiliates, without the prior written consent of the Chairman of the Board or
Chief Executive Officer of the Company.
(b) Executive acknowledges that the Company's and its affiliates' trade
secrets, information concerning products and their development, technical
information, marketing, investment, and sales activities and procedures,
promotion and pricing techniques and credit and financial data concerning the
Company, and its affiliates and any information of third parties made available
to the Company, its subsidiaries or its affiliates pursuant to licensing or
services agreements (the "PROPRIETARY INFORMATION") are valuable, special and
unique assets of the Company and its affiliates, access to and knowledge of
which have
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been gained by virtue of Executive's position and involvement with the Company
and its affiliates. Executive agrees that all Proprietary Information obtained
by Executive as a result of any such position or involvement shall be considered
confidential. In recognition of such fact, Executive agrees that Executive will
not disclose any of such Proprietary Information to any person or other entity
for any reason or purpose whatsoever, and that the Executive will not make use
of any Proprietary Information for his or her own purposes or for the benefit of
any person or other entity.
(c) Executive also agrees that Executive will not, without the prior
written consent of the Chairman of the Board of Directors or Chief Executive
Officer of the Company, directly or indirectly, recruit, seek to recruit, or
hire any present or former employee of the Company or any of its subsidiaries or
its affiliates until at least six (6) months has passed after the termination of
such person's employment by the Company or any of its subsidiaries or its
affiliates.
8. Remedies. (a) Executive acknowledges and agrees that the Company's
remedies at law for a breach or threatened breach of any of the provisions of
Section 7 would be inadequate and, in recognition of this fact, Executive agrees
that, in the event of a breach or threatened breach, in addition to any remedies
at law, the Company, without posting any bond, shall be entitled to obtain
equitable relief in the form of specific performance, temporary restraining
order, temporary or permanent injunction or any other equitable remedy which may
then be available.
(b) It is expressly understood and agreed that although Executive and the
Company consider the restrictions contained in Section 7 to be reasonable, if a
final judicial determination is made by a court of competent jurisdiction that
any restriction contained in this Agreement is an unenforceable restriction
against Executive, the provisions of this Agreement shall not be rendered void
but shall be deemed amended to apply to the maximum extent as such court may
judicially determine or indicate to be enforceable. Alternatively, if any court
of competent jurisdiction finds that any restriction contained in this Agreement
is unenforceable, and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein.
9. Related Agreement. The payments and benefits provided for herein are
contingent upon Executive's execution and compliance with (i) this Agreement and
(ii) the attached Employee Confidentiality and Inventions Agreement.
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10. Entire Agreement; Amendment. This Agreement shall supersede the
Employment Agreement in its entirety and, together with the Employee
Confidentiality and Inventions Agreement, contains the entire understanding of
the parties with respect to Executive's resignation and the termination of
Executive's employment. It may not be altered, modified or amended except by a
written agreement signed by both parties hereto.
11. Effectiveness. This Agreement is subject to approval by the Company's
Board of Directors. Executive has been advised, and understands, that (i) he
has 21 days to consider this Agreement (which shall be considered waived should
Executive execute this letter prior to the lapse of such 21 days), (ii)
Executive can revoke this Agreement during a period of 7 days following its
execution and (iii) this Agreement will become effective and enforceable upon
the expiration of the revocation period.
12. No Waiver. The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver of
such party's rights or deprive such party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
13. Severability. In the event that any one or more of the provisions of
this Agreement shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality or enforceability of the remaining provisions
of this Agreement shall not be affected thereby.
14. Assignment. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, representatives,
successors and assigns. This Agreement shall not be assignable by Executive and
shall be assignable by the Company only to a direct or indirect wholly owned
subsidiary of the Company; provided that no such assignment by the Company
shall relieve the Company of any liability hereunder, whether accrued before or
after such assignment.
15. Acknowledgement. Executive acknowledges that Executive has carefully
read this Agreement, fully understands and accepts all of its provisions and
signs it voluntarily of Executive's own free will. Executive further
acknowledges that Executive has been provided a full opportunity to review and
reflect on the terms of this Agreement and to seek the advice of legal counsel
of Executive's choice.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
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17. Counterparts. This Agreement may be signed in counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
/s/ XXXXXX XXXXX
----------------------------
XXXXXX XXXXX
0000 Xxxxxxxxxxx
Xxx Xxxxx, XX 00000
11/06/2000
VENTRO CORPORATION
By: [SIGNATURE ILLEGIBLE]
----------------------------
Name:
Title: COO
11-07-2000
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EXHIBIT B
SEE VENTRO CONFIDENTIALITY AGREEMENT ATTACHED
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EXHIBIT B
SEE VENTRO CONFIDENTIALITY AGREEMENT ATTACHED
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[VENTRO LOGO]
EMPLOYEE CONFIDENTIALITY AGREEMENT
----------------------------------
The following Agreement confirms certain terms of my employment with Ventro
Corporation (hereafter referred to as "the Company"), which is a material part
of the consideration for my employment by the Company and the compensation
received by me from the Company from time to time. The headings contained in
this Agreement are for convenience only, have no legal significance, and are
not intended to change or limit this Agreement in any matter whatsoever.
A. DEFINITIONS.
1. THE "COMPANY". As used in this Agreement, the "Company" refers to Ventro
Corporation and each of its subsidiaries or affiliated companies. I
recognize and agree that my obligations under this Agreement and all terms
of this Agreement apply to me regardless of whether I am employed by or
work for Ventro Corporation; or any other subsidiary or affiliated company
of Ventro Corporation. Furthermore, I understand and agree that the terms
of this Agreement will continue to apply to me even if I transfer at some
time from one subsidiary or affiliate of the Company to another.
2. "PROPRIETARY INFORMATION". I understand that the Company possesses and
will possess Proprietary Information which is important to its business.
For purposes of this Agreement, "Proprietary Information" is information
that was or will be developed, created, or discovered by or on behalf of
the Company, or which became or will become known by, or was or is
conveyed to the Company, which has commercial value in the Company's
business.
"Proprietary Information" includes, but is not limited to information
about software programs and subroutines, source and object code,
algorithms, trade secrets, designs, technology, know-how, processes, data,
ideas, techniques, inventions (whether patentable or not), works of
authorship, formulas, business and product development plans, customer
lists, terms of compensation and performance levels of Company employees,
Company customers and other information concerning the Company's actual or
anticipated business, research or development, or which is received in
confidence by or for the Company from any other person.
I understand that my employment creates a relationship of confidence and
trust between the Company and me with respect to Proprietary Information.
3. "COMPANY DOCUMENTS AND MATERIALS". I understand that the Company
possesses or will possess "Company Documents and Materials" which are
important to its business. For purposes of this Agreement, "Company
Documents and Materials" are documents or other media or tangible items
that contain or embody Proprietary Information or any other information
concerning the business, operations or plans of the Company, whether such
documents, media or items have been prepared by me or by others.
"Company Documents and Materials" include, but are not limited to,
blueprints, drawings, photographs, charts, graphs, notebooks, customer
lists, computer disks, tapes or printouts, sound recordings and other
printed, typewritten or handwritten documents, sample products, prototypes
and models.
B. ASSIGNMENT OF RIGHTS. All Proprietary Information and all patents, patent
rights, copyrights, trade secret rights, trademark rights and other rights
(including, without limitation, intellectual property rights) anywhere in the
world in connection therewith is and shall be the sole property of the Company.
I hereby assign to the Company any and all rights, title and interest I may
have or acquire in such Proprietary Information.
At all times, both during my employment by the Company and after its
termination, I will keep in confidence and trust and will not use or disclose
any Proprietary Information or anything relating to it
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without the prior written consent of an officer of the Company, except as may
be necessary in the ordinary course of performing my duties to the Company.
C. MAINTENANCE AND RETURN OF COMPANY DOCUMENTS AND MATERIALS. I agree to make
and maintain adequate and current written records, in a form specified by the
Company, of all inventions, trade secrets and works of authorship assigned or
to be assigned to the Company pursuant to this Agreement. All Company Documents
and Materials are and shall be the sole property of the Company.
I agree that during my employment by the Company, I will not remove any Company
Documents and Materials from the business premises of the Company or deliver
any Company Documents and Materials to any person or entity outside the
Company, except as I am required to do in connection with performing the duties
of my employment. I further agree that, immediately upon the termination of my
employment by me or by the Company for any reason, or during my employment if
so requested by the Company, I will return all Company Documents and Materials,
apparatus, equipment and other physical property, or any reproduction of such
property, excepting only (i) my personal copies of records relating to my
compensation; (ii) my personal copies of any materials previously distributed
generally to stockholders of the Company; and (iii) my copy of this Agreement.
D. DISCLOSURE OF INVENTIONS TO THE COMPANY. I will promptly disclose in writing
to my immediate supervisor or to such other person designated by the Company
all "inventions," which includes, without limitation, all software programs or
subroutines, source or object code, algorithms, improvements, inventions, works
of authorship, trade secrets, technology, designs, formulas, ideas, processes,
techniques, know-how and data, whether or not patentable, made or discovered or
conceived or reduced to practice or developed by me, either alone or jointly
with others, during the term of my employment.
I will also disclose to the President of the Company all inventions made,
discovered, conceived, reduced to practice, or developed by me within six (6)
months after the termination of my employment with the Company which resulted,
in whole or in part, from my prior employment by the Company. Such disclosures
shall be received by the Company in confidence (to the extent such
inventions are not assigned to the Company pursuant to Section (E) below) and
do not extend the assignment made in Section (E) below.
E. RIGHT TO NEW IDEAS.
1. ASSIGNMENT OF INVENTIONS TO THE COMPANY. I agree that all inventions
which I make, discover, conceive, reduce to practice or develop (in whole
or in part, either alone or jointly with others) during my employment shall
be the sole property of the Company to the maximum extent permitted by
Section 2870 of the California Labor Code or any like statute of any other
state. Section 2870 provides as follows:
a. Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in
an invention to his or her employer shall not apply to an invention
that the 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:
(1) Relate to 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.
(2) Result from any work performed by the employee for his
employer.
b. To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from
being required to be assigned under subdivision (a), the provision is
against the public policy of this state and is unenforceable.
19
This assignment shall not extend to Inventions, the assignment of which is
prohibited by Labor Code Section 2870.
2. WORKS MADE FOR HIRE. The Company shall be the sole owner of all patents,
patent rights, copyrights, trade secret rights, trademark rights and all
other intellectual property or other rights in connection with inventions.
I further acknowledge and agree that such inventions, including, without
limitation, any computer programs, programming documentation, and other
works of authorship, are "works made for hire" for purposes of the
Company's rights under copyright laws. I hereby assign to the Company any
and all rights, title and interest I may have or acquire in such
inventions. If in the course of my employment with the Company, I
incorporate into a Company product, process or machine a prior invention
owned by me or in which I have interest, the Company is hereby granted and
shall have a nonexclusive, royalty-free, irrevocable, perpetual,
sublicensable, worldwide license to make, have made, modify, use, market,
sell and distribute such prior Invention as part of or in connection with
such product, process or machine.
3. COOPERATION. I agree to perform, during and after my employment, all
acts deemed necessary or desirable by the Company to permit and assist it,
at the Company's expense, in further evidencing and perfecting the
assignments made to the Company under this Agreement and in obtaining,
maintaining, defending and enforcing patents, patent rights, copyrights,
trademark rights, trade secret rights or any other rights in connection
with such inventions and improvements thereto in any and all countries.
Such acts may include, but are not limited to, execution of documents and
assistance or cooperation in legal proceedings. I hereby irrevocably
designate and appoint the Company and its duly authorized officers and
agents, as my agents and attorney-in-fact to act for and on my behalf and
instead of me, to execute and file any documents, applications or related
findings and to do all other lawfully permitted acts to further the
purposes set forth above in this Subsection 3, including, without
limitation, the perfection of assignment and the prosecution and issuance
of patents, patent applications, copyright applications and registrations,
trademark applications and registrations or other rights in connection with
such inventions and improvements thereto with the same legal force and
effect as if executed by me.
4. ASSIGNMENT OR WAIVER OF MORAL RIGHTS. Any assignment of copyright
hereunder (and any ownership of a copyright as a work made for hire)
includes all rights of paternity, integrity, disclosure and withdrawal and
any other rights that may be known as or referred to as "moral rights"
(collectively "Moral Rights"). To the extent such Moral Rights cannot be
assigned under applicable law and to the extent the following is allowed by
the laws in the various countries where Moral Rights exist, I hereby waive
such Moral Rights and consent to any action of the Company that would
violate such Moral Rights in the absence of such consent.
5. LIST OF INVENTIONS. I have attached hereto as Exhibit A a complete list
of all inventions or improvements to which I claim ownership and that I
desire to remove from the operation of this Agreement, and I acknowledge
and agree that such list is complete. If no such list is attached to this
Agreement, I represent that I have no such inventions or improvements at
the time of signing this Agreement.
F. NON-SOLICITATION OF COMPANY EMPLOYEES. During the term of my employment
and for one (1) year thereafter, I will not encourage or solicit any employee
of the Company to leave the Company for any reason or to accept employment with
any other company. As part of this restriction, I will not interview or provide
any input to any third party regarding any such person during the period in
question. However, this obligation shall not affect any responsibility I may
have as an employee of the Company with respect to the bona fide hiring and
firing of Company personnel.
G. COMPANY AUTHORIZATION FOR PUBLICATION. Prior to by submitting or
disclosing for possible publication or dissemination outside the Company any
material prepared by me that incorporates information that concerns the
Company's business or anticipated research, I agree to deliver a copy of such
material to an officer of the Company for his or her review. Within twenty (20)
days following such submission, the Company agrees to notify me in writing
whether the Company believes such material
20
contains any Proprietary Information or Inventions, and I agree to make such
deletions and revisions as are reasonably requested by the Company to protect
its Proprietary Information and Inventions. I further agree to obtain the
written consent of the Company prior to any review of such material by persons
outside the Company.
H. DUTY OF LOYALTY. I agree that, during my employment with the Company, I
will not provide consulting services to or become an employee of, any other
firm or person engaged in a business in any way competitive with the Company or
involved in the design, development, marketing, sale or distribution of any
networking or software products, without first informing the Company of the
existence of such proposed relationship and obtaining the prior written consent
of my manager and the Human Resource Manager responsible for the organization
in which I work.
I. FORMER EMPLOYER INFORMATION. I represent that my performance of all the
terms of this Agreement and as an employee of the Company does not and will not
breach any agreement to keep in confidence proprietary information, knowledge
or data acquired by me in confidence or in trust prior to my employment by the
Company, and I will not disclose to the Company or induce the Company to use
any confidential or proprietary information or material belonging to any
previous employers or others. I have not entered into and I agree I will not
enter into any agreement, either written or oral, in conflict herewith or in
conflict with my employment with the Company. I further agree to conform to the
rules and regulations of the Company.
J. AT-WILL EMPLOYMENT. I agree and understand that employment with the Company
is "at-will," meaning that it is not for any specified period of time and can
be terminated by me or by the Company at any time, with or without advance
notice, and for any or no particular reason or cause. I agree and understand
that it also means that job duties, title and responsibility and reporting
level, compensation and benefits, as well as the Company's personnel policies
and procedures, may be changed at any time at-will by the Company. I understand
and agree that nothing about the fact or the content of this Agreement is
intended to, nor should be construed to, alter the at-will nature of my
employment with the Company.
I understand and agree that this Agreement is the complete agreement between
the Company and me regarding the nature of my employment with the Company. I
also understand and agree that the at-will nature of employment with the
Company can only be changed by the Company President in an express writing
signed and dated by him or her and by me.
K. SEVERABILITY. I agree that if one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provisions shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
L. AUTHORIZATION TO NOTIFY NEW EMPLOYER. I hereby authorize the Company to
notify my new employer about my rights and obligations under this Agreement
following the termination of my employment with the Company.
M. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and
understanding between the Company and me relating to the subject matter herein
and merges all prior discussions between us, including but not limited to any
and all statements made by any officer, employee or representative of the
Company regarding the Company's financial condition or future prospects. I
understand and acknowledge that, except as set forth in this Agreement and in
the offer letter from the Company to me, (i) no other representation or
inducement has been made to me, (ii) I have relied on my own judgment and
investigation in accepting my employment with the Company, and (iii) I have not
relied on any representation or inducement made by any officer, employee or
representative of the Company. No modification of or amendment to this
Agreement nor any waiver of any rights under this Agreement will be effective
unless in a writing signed by the President of the Company and me. I understand
and agree that any subsequent change or changes in my duties, salary or
compensation will not affect the validity or scope of this Agreement.
21
N. EFFECTIVE DATE. This Agreement shall be effective as of the first day of my
employment with the Company and shall be binding upon me, my heirs, executors,
assigns and administrators and shall inure to the benefit of the Company, its
subsidiaries and assigns.
O. GOVERNING LAW. Although I may work for the Company outside of California or
the United States, I understand and agree that this Agreement shall be
interpreted and enforced in accordance with the laws of the State of California.
I HAVE READ THIS AGREEMENT CAREFULLY AND I UNDERSTAND AND ACCEPT THE
OBLIGATIONS WHICH IT IMPOSES UP0N ME WITHOUT RESERVATION. NO PROMISES OR
REPRESENTATIONS HAVE BEEN MADE TO ME TO INDUCE ME TO SIGN THIS AGREEMENT.
I SIGN THIS AGREEMENT VOLUNTARILY AND FREELY.
/s/ XXXXXX X. XXXXX
-----------------------------------
Employee's Signature
Xxxxxx X. Xxxxx
-----------------------------------
Print Name
11/06/2000
-----------------------------------
Date
22
EXHIBIT A
1. The following is a complete list of all Inventions or improvements relevant
to the subject matter of my employment by the Company that have been made or
discovered or conceived or first reduced to practice by me or jointly with
others prior to my employment by the Company that I desire to remove from the
operation of the Company's Proprietary Information and Inventions Agreement:
____ No inventions or improvements.
____ See below: Any and all inventions regarding:
____ Additional sheets attached.
2. I propose to bring to my employment the following materials and documents
of a former employer:
____ No materials or documents
____ See below:
/s/ XXXXXX X. XXXXX
--------------------------------
Employee's Signature
Xxxxxx X. Xxxxx
--------------------------------
Print Name
11/06/2000
--------------------------------
Date
