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EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made as of the
Effective Date indicated below by and between Prism Solutions, Inc., a Delaware
corporation ("Prism Solutions"), Customer Focus International, Inc., a
California corporation ("CFI") and Xxxxx X. Xxxx ("Employee").
BACKGROUND
This Agreement is entered into in connection with an Agreement and
Plan of Reorganization (the "Plan") dated as of January 26, 1998 by and among
Prism Solutions, C Acquisition Corp., a Delaware corporation, CFI, and certain
shareholders of CFI, pursuant to which C Acquisition Corp., a wholly-owned
subsidiary of Prism Solutions, is to merge with and into CFI. The date on
which the merger becomes effective will be the effective date of this Agreement
(the "Effective Date").
Employee is a founder, principal shareholder and President and Chief
Executive Officer of CFI and has been actively involved in the development and
marketing of CFI's products. To preserve and protect the assets of CFI,
including CFI's goodwill, customers and trade secrets of which Employee has and
will have knowledge, and in consideration for Prism Solutions' entering into
and performing under the Plan, Employee has agreed to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements of the parties contained herein, Prism Solutions and Employee hereby
agree as follows:
1. Employment. Prism Solutions will employ Employee and Employee
accepts employment with Prism Solutions for a period of three years from the
Effective Date (the "Initial Period"), unless Employee's employment is sooner
terminated in accordance with this Agreement. Employee's employment may continue
after this Initial Period but will then be terminable by either party at will,
with or without cause. The obligations of Prism Solutions and Employee set forth
in the Proprietary Information and Inventions Agreement (as defined in Section
7) (referring to confidentiality), and in Section 8 (referring to termination),
and in Section 9(i) (referring to dispute resolution) and, to the extent
specifically provided therein, the obligations of Prism Solutions and Employee
set forth in Section 5 (referring to employee benefits) and Section 6 (referring
to reimbursement of expenses), will survive the termination of Employee's
employment, regardless of cause.
2. Duties. Employee will be employed as a full-time employee of
Prism Solutions and will serve as Vice President, Managing Director Prism
Financial Applications Business Unit responsible for CFI operations, reporting
to Xxxxxx Xxxxx, President of Prism Solutions. Employee agrees that, to the best
of his ability and experience, he will at all times conscientiously perform all
of the duties and obligations assigned to him under this Agreement. At Prism
Solutions' option, it will be entitled to reasonable use of Employee's name in
promotional, advertising and other materials used in the ordinary course of
business.
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3. Full-time Employment. Employee's employment will be on a
full-time basis, in accordance with standard employee policies for Prism
Solutions. Employee will not engage in any other business or render any
commercial or professional services, directly or indirectly, to any other person
or organization, whether for compensation or otherwise, provided that Employee
may (i) provide incidental assistance to family members on matters of family
business; and (ii) sit on the boards of charitable and nonprofit organizations
or other companies which do not, at the time of Employee's appointment or
election, to Employee's knowledge, compete with Prism Solutions; provided in
each case that such activities do not conflict with or interfere with Employee's
obligations to Prism Solutions. Employee may make personal investments in non-
publicly traded corporations, partnerships or other entities, which, to the
knowledge of Employee, do not at the time of such investment design, research,
distribute or otherwise market products similar to or competitive with Prism
Solutions in the customer relationship management system for the financial
services industry software product market. Employee may make personal
investments in publicly traded corporations regardless of the business they are
engaged in, provided that Employee does not at any time own in excess of l% of
the issued and outstanding stock of any such corporation.
4. Salary. Employee's salary for the period commencing on the
Effective Date will be no less than $200,000 per year, payable on Prism
Solutions' regular payroll dates, less required withholdings and will be
eligible for a target bonus of $50,000 based on targeted personal and company
performance.
5. Employee Benefits. Prism will assume CFI's obligations with
respect to Employee's Mercedes automobile lease with World Omni Financial Corp.,
for a period of not longer than three years. Employee will be entitled to
insurance, vacation and other benefits commensurate with other executive
officers of Prism Solutions. Employee has received a summary of Prism Solutions'
standard employee benefits policies in effect as of the date hereof.
6. Reimbursement of Business Expenses. Prism Solutions will, in
accordance with Prism Solutions' policies in effect from time to time, reimburse
Employee for all reasonable business expenses incurred by Employee in connection
with the performance of his duties under this Agreement, including, without
limitation, reasonable expenditures for office space, supplies, equipment and
expenses and for business entertainment and travel, upon submission of the
required documentation required pursuant to Prism Solutions' standard policies
and record keeping procedures.
7. Confidentiality. Simultaneously with the execution of this
Agreement, Employee is executing and delivering and hereby adopts and agrees to
be bound by Prism Solutions' standard Employee Proprietary Information and
Inventions Agreement, a copy of which is attached to this Agreement as Exhibit A
(the "Proprietary Information and Inventions Agreement").
8. Termination.
(a) By Prism Solutions. Prism Solutions may terminate
Employee's employment at any time with or without cause upon written notice to
Employee.
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(b) By Employee. Employee may terminate Employee's
employment in the event that Prism Solutions is in material breach of this
Agreement upon written notice to Prism Solutions, provided that such
termination will become effective only upon the expiration of 30 days following
such notice and then only if the alleged breach remains uncured. Such
termination shall be deemed a termination by Prism Solutions of Employee's
employment under Section 8(a) for which Employee shall have the remedy set
forth in Section 8(d).
(c) Employee may terminate his employment at any time,
provided that Employee provides two weeks advance written notice to Prism
Solutions of such termination.
(d) If Prism Solutions terminates Employee For Cause (as
defined below), this Agreement shall terminate and Employee shall not be
entitled to any further benefits hereunder, except as specifically set forth
herein. If, during the Initial Period, Prism Solutions terminates Employee
and such termination is not For Cause, Prism Solutions will pay to Employee,
for the remainder of the Initial Period, on a monthly basis an amount equal to
Employee's monthly salary at the monthly rate paid to Employee immediately
prior to such termination (the "Termination Payments"). Prism Solutions'
obligation to make these Termination Payments pursuant to this Section 8(d) is
in lieu of any damages or any other payment which Prism Solutions might
otherwise be obligated to pay Employee as a result of Employee's termination of
employment. Prism Solutions and Employee agree that, in view of the nature of
the issues likely to arise in the event of such a termination, it would be
impracticable or extremely difficult to fix the actual damages resulting from
such termination and proving actual damages, causation and foreseeability in
the case of such termination would be costly, inconvenient and difficult. In
requiring Prism Solutions to make the Termination Payments as set forth herein,
it is the intent of the parties to provide, as of the date of this Agreement,
for a liquidated amount of damages to be paid by Prism Solutions to Employee.
Such liquidated amount shall be deemed full and adequate damages for such
termination and is not intended by either party to be a penalty.
For purposes of this Agreement, "For Cause" shall mean:
(i) Employee's continued failure to perform his
duties hereunder in good faith, after written notice of such failure from Prism
Solutions or CFI to Employee and an opportunity to cure such failure to
perform;
(ii) Employee engaging in knowing and intentional
illegal conduct which is injurious to Prism Solutions or CFI or their
affiliates;
(iii) Employee being convicted of a felony or
committing an act of dishonesty or fraud against, or the misappropriation of
property belonging to, Prism Solutions or CFI or their affiliates;
(iv) Employee breaching in any material respect
the terms of this Agreement or the Noncompetition Agreement;
(v) Employee's commencement of employment with
another employer while an employee of Prism Solutions or CFI; and
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(vi) Any behavior or breach of Prism Solutions'
standards of business conduct which would be cause for termination under Prism
Solutions' employment policies as they currently exist or as effected in the
future, after written notice of such behavior or breach from Prism Solutions or
CFI to Employee and an opportunity to cure such behavior or breach.
(e) Upon Death. If Employee dies during the term of this
Agreement, Prism Solutions will pay his estate an amount equal to all salary,
bonuses and benefits accrued as of the date of his death.
9. Miscellaneous.
(a) Notices. Any and all notices permitted or required
to be given under this Agreement must be in writing. Notices will be deemed
given (i) when personally received or when sent by facsimile transmission (to
the receiving party's facsimile number), (ii) on the first business day after
having been sent by commercial overnight courier with written verification of
receipt, or (iii) on the third business day after having been sent by
registered or certified mail from a location on the United States mainland,
return receipt requested, postage prepaid, whichever occurs first, at the
address set forth below or at any new address, notice of which will have been
given in accordance with this Section 9(a):
If to Prism Solutions: Prism Solutions, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
With a copy to: Fenwick & West LLP
Two Xxxx Xxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx Xxxxxxxxxx 00000
Attn: Xxxxxxxxxx Xxxxx, Esq.
If to Employee: Xxxxx X. Xxxx
00000 Xxxxx Xxxx Xxxx
Xxxx Xxxxx, XX 00000
Tel:
Fax:
With a copy to: Xxxxx, Xxx & Xxxxxxx LLP
00000 Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
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(b) Amendments. This Agreement, including Exhibit A
hereto, contains the entire agreement and supersedes and replaces all prior
agreements between Prism Solutions and Employee or CFI and Employee concerning
Employee's employment. This Agreement may not be changed or modified in whole
or in part except by a writing signed by the party against whom enforcement of
the change or modification is sought.
(c) Successors and Assigns. This Agreement will not be
assignable by either Employee or Prism Solutions, except that the rights and
obligations of Prism Solutions under this Agreement may be assigned to a
corporation which becomes the successor to Prism Solutions as the result of a
merger or other corporate reorganization and which continues the business of
Prism Solutions, or any other subsidiary of Prism Solutions, provided that
Prism Solutions guarantees the performance by such assignee of Prism Solutions'
obligations hereunder.
(d) Governing Law. This Agreement will be governed by
and interpreted according to the substantive laws of the State of California
without regard to such state's conflicts law.
(e) No Waiver. The failure of either party to insist on
strict compliance with any of the terms of this Agreement in any instance or
instances will not be deemed to be a waiver of any term of this Agreement or of
that party's right to require strict compliance with the terms of this
Agreement in any other instance.
(f) Severability. Employee and Prism Solutions recognize
that the limitations contained herein are reasonably and properly required for
the adequate protection of the interests of Prism Solutions. If for any reason
a court of competent jurisdiction or binding arbitration proceeding finds any
provision of this Agreement, or the application thereof, to be unenforceable,
the remaining provisions of this Agreement will be interpreted so as best to
reasonably effect the intent of the parties. The parties further agree to
replace any such invalid or unenforceable provisions with valid and enforceable
provisions designed to achieve, to the extent possible, the business purposes
and intent of such unenforceable provisions.
(g) Counterparts. This Agreement may be executed in
counterparts which when taken together will constitute one instrument. Any
copy of this Agreement with the original signatures of all parties appended
will constitute an original.
(h) Effect of Agreement. This Agreement will be void and
have no effect if the Effective Date does not occur on or before January 31,
1998.
(i) Dispute Resolution.
(i) Arbitration of Disputes. Any dispute under
this Agreement shall be resolved by arbitration in San Francisco, California
and, except as herein specifically stated, in accordance with the commercial
arbitration rules of the American Arbitration Association ("AAA Rules") then in
effect. However, in all events, these arbitration provisions shall govern over
any conflicting rules which may now or hereafter be contained in the AAA Rules.
Any judgment upon the award rendered by the arbitrator may be entered in any
court having
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jurisdiction over the subject matter thereof. The arbitrator shall have the
authority to grant any equitable and legal remedies that would be available in
any judicial proceeding instituted to resolve such dispute; except that the
arbitrator shall not grant any punitive, consequential or incidental damages.
(ii) Compensation of Arbitrator. Any such
arbitration will be conducted before a single arbitrator who will be
compensated for his or her services at a rate to be determined by the parties
or by the American Arbitration Association, but based upon reasonable hourly or
daily consulting rates for the arbitrator in the event the parties are not able
to agree upon his or her rate of compensation.
(iii) Selection of Arbitrator. The American
Arbitration Association will have the authority to select an arbitrator from a
list of arbitrators who are partners in a nationally recognized firm of
independent certified public accountants from the management advisory services
department (or comparable department or group) of such firm; provided, however,
that such firm cannot be the firm of certified public accountants then auditing
the books and records of either party or providing management or advisory
services for either party.
(iv) Payment of Costs. Prism Solutions and
Employee will each pay 50% of the initial compensation to be paid to the
arbitrator in any such arbitration and 50% of the costs of transcripts and
other normal and regular expenses of the arbitration proceedings; provided,
however, that the prevailing party in any arbitration will be entitled to an
award of attorneys' fees and costs, and all costs of arbitration, other than
those provided for above, will be paid by the losing party, and the arbitrator
will be authorized to make such determinations.
(v) Burden of Proof. For any dispute submitted
to arbitration, the burden of proof will be as it would be if the claim were
litigated in a judicial proceeding.
(vi) Award. Upon the conclusion of any
arbitration proceedings hereunder, the arbitrator will render findings of fact
and conclusions of law and a written opinion setting forth the basis and
reasons for any decision reached and will deliver such documents to each party
to this Agreement along with a signed copy of the award.
(vii) Terms of Arbitration. The arbitrator chosen
in accordance with these provisions will not have the power to alter, amend or
otherwise affect the terms of these arbitration provisions or the provisions of
this Agreement.
(viii) Exclusive Remedy. Except as specifically
otherwise provided in this Agreement, arbitration will be the sole and
exclusive remedy of the parties for any dispute arising out of this Agreement.
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IN WITNESS WHEREOF, this Agreement is made and effective as of the day and year
first above written.
PRISM SOLUTIONS, INC. EMPLOYEE
By: /s/ Xxxx Xxxxxxx /s/ Xxxxx X. Xxxx
-------------------------------- --------------------------------
Xxxx Xxxxxxx Xxxxx X. Xxxx
Secreatry and
Chief Financial Officer
SIGNATURE PAGE TO EMPLOYMENT AGREEMENT
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CONFIDENTIAL
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INVENTION AND NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is entered into between Prism Solutions, Inc.
(hereinafter referred to as "PRISM SOLUTIONS"), and the undersigned employee or
representative of Prism Solutions for the following reason: The employees and
representatives of Prism Solutions are involved with information and materials
of a highly sensitive nature which must be protected in order for Prism
Solutions to be successful. Each employee and representative is obligated to
treat such information and materials as confidential. Prism Solutions believes
that it is appropriate for each employee and representative to clearly
understand and agree in writing as to the extent of his or her obligation to
Prism Solutions with respect to highly sensitive information and materials.
THEREFORE, Prism Solutions and the undersigned employee or
representative agree as follows:
1. PRISM SOLUTIONS CONFIDENTIAL INFORMATION AND
MATERIALS. The following information and materials whether having existed, now
existing or developed or created during the term of your employment at Prism
Solutions (the "PRISM SOLUTIONS CONFIDENTIAL INFORMATION AND MATERIAL") are
proprietary to Prism Solutions and are highly sensitive in nature:
1.1 SOFTWARE. All information and materials relating to
existing software products and software in various stages of research and
development, including source code, object and load modules, design
specifications (design notes, flow charts, coding sheets, annotations,
documentation and the like), technical and engineering data, laboratory
studies, benchmark test results, and the designs, formulas and algorithms which
reside in the software and which are not generally known to the public or
within the industries or trades in which Prism Solutions competes.
1.2 BUSINESS PROCEDURES. Internal business procedures,
including licensing techniques, production processes and equipment, vendor
names, other vendor information, purchasing information, financial information,
service and operational manuals and related documentation, and other such
information which relates to the way Prism Solutions conducts its business and
which is not generally known to the public.
1.3 LEGAL RIGHTS. Patents, copyrights, trade secrets,
trademarks and service marks, and the like.
1.4 MARKETING PLANS AND CUSTOMER LISTS. Customer and
marketing information and materials, such as: (i) strategic data, including
marketing and development plans, forecasts and forecast assumptions and
volumes, and future plans and potential strategies of Prism Solutions which
have been or are being discussed; (ii) financial data, including price and cost
objectives, price list, pricing policies and procedures, and quoting policies
and procedures; and (iii) customer data, including customer lists, names of
customers and their representatives, data provided by or about prospective,
existing or past customers, customer service materials, and the type, quantity
and specifications of products purchased, leased or licensed by customers of
Prism Solutions.
1.5 NOT GENERALLY KNOWN. Any information not generally
known to the public or within the industries or trades in which Prism Solutions
competes, which gives Prism Solutions a competitive edge.
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2. GENERAL KNOWLEDGE. The general skills and experience gained
during your employment with Prism Solutions, and information publicly available
or generally known within the industries or trades in which Prism Solutions
competes, are not considered Prism Solutions confidential information. Also,
upon termination of your employment with Prism Solutions, you are not
restricted from working with a person or entity which has independently
developed information or materials similar to Prism Solutions confidential
information or materials. However, you understand and agree that such
similarity does not excuse you from your obligation not to disclosure or use
Prism Solutions confidential information and materials except in accordance
with this Agreement.
3. EMPLOYEE OBLIGATIONS. During your employment with Prism
Solutions you will have access to Prism Solutions confidential information and
materials and you will occupy a position of trust and confidence with respect
to Prism Solutions' affairs and business. You agree to take the following
steps to preserve the confidential and proprietary nature of the Prism
Solutions confidential information and materials:
3.1 NO "MOONLIGHTING." During your employment with Prism
Solutions, you will not accept or continue in any other job consulting work,
directorship, or employment with a person or entity involved in marketing
products or services competitive with Prism Solutions, without the written
approval of an officer of Prism Solutions.
3.2 NON-DISCLOSURE. During and after your employment
with Prism Solutions, you will not use, disclose or transfer any of the Prism
Solutions confidential information or materials other than as authorized by
Prism Solutions within the scope of your duties with Prism Solutions. You
understand that you are not allowed to sell, license or otherwise exploit any
products (including software in any form) which embody in whole or in part any
part of any Prism Solutions confidential products or materials.
3.3 PREVENT DISCLOSURE. You will take all reasonable
precautions to prevent the inadvertent exposure of the Prism Solutions
confidential information and materials to unauthorized persons or entities.
3.4 ABIDE BY PRISM SOLUTIONS' RESTRICTIONS. You will
treat as confidential and proprietary any information or materials from outside
Prism Solutions which Prism Solutions is obligated to treat as confidential or
proprietary, in accordance with Prism Solutions' reasonable instructions to
you.
3.5 RETURN ALL MATERIALS. Upon termination of your
employment with Prism Solutions, you will deliver to Prism Solutions all
tangible materials embodying the Prism Solutions confidential information,
including any documentation, records, listings, notes, data, sketches,
drawings, memoranda, models, accounts, reference materials, samples,
machine-readable material and equipment which in any way relate to the Prism
Solutions confidential information and materials. Of course, you agree not to
retain any copies of any of the above materials.
3.6 NO SOLICITATION OF EMPLOYEES. Both during your
employment and for twelve (12) months after your employment is terminated, you
will not directly or indirectly solicit any of Prism Solutions' employees or
key employees of Prism Solutions' customers for employment with another person
or entity. Key employees include supervisory personnel, executives, personnel
in charge of any department, section or subdivision and project managers (or
directors) and senior personnel on any individual project or projects.
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3.7 NAME & LIKENESS RIGHTS. You hereby authorize Prism
Solutions to use, reuse, and to grant others the right to use and reuse, your
name, photograph, likeness (including caricature), voice, and biographical
information, and any reproduction or simulation thereof, in any media now known
or hereafter developed (including but not limited to film, video and digital or
other electronic media), both during and after your employment, for whatever
purposes Prism Solutions deems necessary.
4. IDEAS AND INVENTIONS.
4.1 WORKS FOR HIRE. You acknowledge and agree that any
copyrightable works prepared by you within the scope of your employment are
"WORKS FOR HIRE" under the Copyright Act and that Prism Solutions will be
considered the author and owner of such copyrightable works.
4.2 ASSIGNMENT OF INVENTIONS. You hereby assign and
agree to assign to Prism Solutions, and you agree to comply with all reasonable
instructions of Prism Solutions regarding all ideas, inventions and workproduct
(including developments, innovations and improvements to existing Prism
Solutions confidential information or materials) conceived or made by you alone
or with others in the course of your employment with Prism Solutions, or by
incorporation in whole or part of Prism Solutions materials (the "INVENTIONS").
You agree that all Inventions that (a) are developed using equipment, supplies,
facilities or trade secrets of Prism Solutions, (b) result from work performed
by you for Prism Solutions, or (c) relate to Prism Solutions's business or
current or anticipated research and development, will be the sole and exclusive
property of Prism Solutions and are hereby irrevocably assigned by you to Prism
Solutions. You agree to promptly disclose in confidence to Prism Solutions all
Inventions and whether or not such Inventions are patentable, copyrightable or
protectible as trade secrets. You hereby irrevocably transfer and assign to
Prism Solutions all worldwide patents, patent applications, copyrights, mask
works, trade secrets and other intellectual property rights in any Invention
and you appoint the Secretary of Prism Solutions as your attorney-in-fact to
execute documents on your behalf for this purpose.
4.3 ASSIGNMENT OF MORAL RIGHTS. You further irrevocably
transfer and assign to Prism Solutions any and all "Moral Rights" (as defined
below) that you may have in or with respect to any Invention. You also hereby
forever waive and agree never to assert any and all Moral Rights you may have
in or with respect to any Invention, even after termination of your work on
behalf of Prism Solutions. "MORAL RIGHTS" mean any rights to claim authorship
of an Invention to object to or prevent the modification of any Invention, or
to withdraw from circulation or control the publication or distribution of any
Invention, and any similar right, existing under judicial or statutory law of
any country in the world, or under any treaty, regardless of whether or not
such right is denominated or generally referred to as a "moral right".
5. LABOR CODE Section 2870 NOTICE. You have been notified and
understand that the provisions of Section 4 above shall not apply to an
Invention that qualifies fully under the provisions of Section 2870 of the
California Labor Code, which states as follows:
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
AT THE TIME OF CONCEPTION OR REDUCTION TO PRACTICE OF
THE INVENTION TO
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THE EMPLOYER'S BUSINESS, OR ACTUALLY OR DEMONSTRABLY
ANTICIPATED RESEARCH OR DEVELOPMENT OF THE EMPLOYER,
OR (2) 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 CALIFORNIA LABOR CODE
SECTION 2870(a), THE PROVISION IS AGAINST THE PUBLIC
POLICY OF THIS STATE AND IS UNENFORCEABLE.
6. PRIOR INFORMATION. In order to have flexibility in planning and
development, Prism Solutions retains the option to develop and/or market
products covering a wide spectrum of the computer software market. Some of these
products, which we either now market or may later market, may compete directly
or indirectly with current or future products of your previous employers. With
this in mind, you understand and agree that one condition of your employment is
that you continue to keep strictly confidential any information which is
proprietary to or a trade secret of any past employers. You acknowledge and
agree that you have not and will not disclose any such proprietary information
or trade secrets to Prism Solutions, its employees, or its agents.
7. CONFLICTING OBLIGATIONS AND RIGHTS. You represent and warrant to Prism
Solutions that (a) there are no restrictions, agreements or understandings
whatsoever to which you are a party that would prevent or make unlawful your
execution of this Agreement or your employment by Prism Solutions, (b) your
execution of this Agreement and your employment hereunder shall not constitute a
breach of any contract, agreement or understanding, oral or written, to which
you are a party or by which you are bound, and (c) you are free and able to
execute this Agreement and to enter into employment by Prism Solutions. In
addition, you agree to inform Prism Solutions of any apparent conflict between
your work for Prism Solutions and (a) any obligations you may have to preserve
the confidentiality of another's proprietary information, materials, or trade
secrets, or (b) any rights you claim to any inventions or ideas, before
performing that work (or causing it to be performed). Otherwise, you agree that
Prism Solutions may conclude that no such conflict exists and you further agree
that you thereafter will make no such claim against Prism Solutions. Prism
Solutions shall receive such disclosures in confidence.
8. ENFORCEMENT. You understand that monetary damages will not be
sufficient to avoid or compensate for the unauthorized use or disclosure of any
of the Prism Solutions confidential information or materials and that injunctive
relief would be appropriate to prevent any actual or threatened use of
disclosure of such information or materials. You understand that Prism Solutions
may waive some of the requirements expressed in this Agreement but that such a
waiver to be effective must be in writing by Prism Solutions officer and should
not in any way be deemed a waiver of Prism Solutions' right to enforce any other
requirements or provisions of this Agreement. You agree that each of your
obligations specified in Paragraphs 3 and 4 is a separate and independent
covenant and that the unenforceability of any of them shall not preclude the
enforcement of the rest of them or of any other covenants elsewhere in this
Agreement.
9. TERMINATION OF EMPLOYMENT. You understand and agree that your
employment by Prism Solutions can be terminated with or without cause, and with
or without notice, at any time at the option of Prism Solutions or yourself. You
authorize Prism Solutions to notify your actual or future employers of the terms
of this Agreement and your responsibilities hereunder. You further understand
and agree that no manager or representative of Prism Solutions has any authority
to enter into any
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agreement contrary to the foregoing, except that the President of Prism
Solutions has authority to make such an agreement only in writing.
10. GENERAL. This Agreement contains the full and complete understandings
of the parties on the subjects hereof and supersedes all prior oral or written,
express or implied understandings or agreements on those subjects. It may only
be modified in writing signed by you and the President of Prism Solutions.
Should any provision of this Agreement be invalid, ineffective, or
unenforceable, under present or future laws, the remainder of the provisions
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
WHEREFORE, by your signature below, you acknowledge that you have
reviewed carefully what has been expressed in this document, which you
understand is a legally binding document, and that the understandings and
agreements expressed in this document are binding upon you.
I agree to the above terms and acknowledge receipt of a copy of this
Agreement.
--------------------------------- PRISM SOLUTIONS, INC.
(Employee's signature)
By: /s/ Xxxx Xxxxxxx
-------------------------------
---------------------------------
(Print name)
Date: Date: 1/26/98
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Address:
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SS#
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