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EXHIBIT 10.1
AT-WILL EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made as of November 23,
1999 (the "Effective Date"), by and between OMNIS TECHNOLOGY CORPORATION, a
Delaware corporation (the "Company"), and XXXXX XXXXX (the "Employee"). Except
as the context otherwise requires the term "Company" as used in this Agreement
shall refer to Omnis Technology Corporation and its subsidiaries. In
consideration of the mutual covenants contained in this Agreement, the Company
and the Employee agree as follows:
1. Employment. The Company agrees to employ the Employee and the
Employee agrees to be employed by the Company on the terms and conditions set
forth in this Agreement.
2. Capacity. The Employee shall initially serve the Company as its Chief
Financial Officer and Chief Operating Officer. The Employee shall report
directly to the Chairman of the Board of Directors of the Company ("Chairman").
The Employee shall also serve the Company in such other or additional offices as
the Employee may be requested to serve by the Board of Directors of the Company
(the "Board of Directors"). In such capacity or capacities, the Employee shall
perform such services and duties in connection with the business, affairs and
operations of the Company as may be assigned or delegated to the Employee from
time to time by or under the authority of the Board of Directors.
3. At-Will. The Employee's employment under this Agreement by the
Company ("Employment") shall commence on the Effective Date and shall be
terminable at-will but otherwise shall be subject to all of the provisions of
this Agreement. "Terminable at will" means that Employee is free to end the
Employment of the Employee at any time for any reason or no reason, with or
without cause and with or without notice; and similarly the Company may end the
Employment of the Employee at any time for any legal reason, with or without
cause and with or without notice.
4. Compensation and Benefits. The regular compensation and benefits
payable to the Employee by the Company under this Agreement shall be as follows:
(a) Salary. Commencing on the Effective Date, for all services
rendered by the Employee under this Agreement, the Company shall pay the
Employee a base salary (the "Base Salary") at the annual rate of One Hundred
Fifty Thousand Dollars ($150,000). The Base Salary shall be payable in periodic
installments in accordance with the Company's usual practices for its senior
employees. The Board of Directors of the Company further may, but shall not be
obligated to, authorize additional compensation for Employee in the form of
bonuses or otherwise as the Board deems appropriate in its sole discretion from
time to time.
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(b) Stock Option. The parties acknowledge that as of the
Effective Date the Board of Directors appointed the Employee as a Director of
the Company to fill a vacancy on the Board of Directors, and that the Company
granted to the Employee (as a director) as of the Effective Date options to
purchase 96,825 shares of the Company's Common Stock ("Common Stock") pursuant
to a separate Stock Option Agreement between the Company and the Employee; such
options shall vest over a period of three (3) years or sooner as specified in
the Option Agreement and shall have an option exercise price of 100% percent of
the closing price of the Common Stock on the Effective Date. Neither the
Employee's position as a director of the Company nor such Option Agreement shall
affect the terms or conditions or the at-will nature of the Employment of the
Employee.
(c) Regular Benefits. The Employee shall also be entitled to
participate in any employee benefit plans, medical insurance plans, retirement
plans and other benefit plans which the Company may from time to time have in
effect for senior employees or for all or most of its employees. Such
participation shall be subject to the terms of the applicable plan documents,
generally applicable policies of the Company, applicable law and the discretion
of the Board of Directors, the Compensation Committee of the Board of Directors
or any administrative or other committee provided for by any such plan. Nothing
in this Agreement shall be construed to create any obligation on the part of the
Company to establish any such plan or to maintain the effectiveness of any such
plan which may be in effect from time to time.
(d) Vacation. The Employee shall be entitled to the same weeks
of paid vacation during each full year that Employee is employed hereunder as
generally available to senior managerial employees of the Company with the same
period of service. In the event the employment of Employee is terminated,
Employee shall be paid for all accrued and unused vacation time.
(e) Expenses. The Company shall reimburse Employee for all
appropriately documented, reasonable business expenses incurred by Employee in
accordance with the established the Company policies for managerial employees
which the Company may amend in its sole discretion.
(f) Taxation of Payments and Benefits. The Company shall have
the right to make deductions, withholdings and tax reports with respect to
payments and benefits under this Agreement to the extent that it reasonably and
in good faith believes it is required to do so under applicable law. Payments to
Employee under this Agreement shall be in amounts net of any such deductions or
withholdings. Nothing in this Agreement shall be construed to require the
Company to make any payments to compensate the Employee for any adverse tax
effect associated with any payment or benefit or for any deduction or
withholding from any payment or benefit.
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(g) Exclusive. The Employee shall not be entitled to any payment
or benefit other than as provided in this Agreement.
5. Duties. During the Employment of the Employee, the Employee shall,
subject to the direction and supervision of the Chairman of the Company or the
Chairman's designee, devote the Employee's full business time, best efforts and
business judgment, skill and knowledge to the advancement of the Company's
interests and to the discharge of the Employee's duties and responsibilities
under this Agreement. Employee shall further duly, punctually and faithfully
perform and observe any and all rules and regulations which the Company may now
or shall hereafter establish governing the conduct of its business or its
employees. Employee's performance of his duties shall at all times be rendered
to the Company's satisfaction.
6. Confidential Information; Non-Competition.
(a) Confidential Information. For these purposes "Confidential
Information" shall be collectively defined as any and all technical or
engineering information, know-how, data, designs, diagrams, plans,
specifications, structures, computer codes, documents, patent applications,
trade secrets, ideas, concepts, inventions, products, prototypes, processes,
formulae, works in process, systems, technologies, marketing plans, the identity
of or other information regarding actual or potential customers or trade
contacts, business or other financial information, and other confidential and
proprietary information of the Company or any of its customers, in whatever
form, whether disclosed by the Company or otherwise observed or learned by
Employee during the course of employment, and whether or not labeled or
identified as confidential or proprietary. "Confidential Information" shall also
include any confidential or proprietary information of a third party disclosed
to the Company or any of its customers pursuant to a nondisclosure or
confidentiality agreement to which the Company is a party; and any Invention as
herein defined.
(b) Protection of Confidential Information.
(i) Employee acknowledges and agrees that the
Confidential Information of the Company is proprietary, constitutes a valuable
asset of the Company, and is the sole property of the Company. Without limiting
the foregoing, Employee acknowledges and agrees that all writings and other
tangible materials in any form that contain Confidential Information of the
Company that are produced by Employee or others or that otherwise come into
Employee's possession are and will remain the property of the Company, and will
be treated as Confidential Information.
(ii) Employee agrees that at all times during and after
the Employment of the Employee, Employee shall hold in trust, maintain as
confidential and not disclose to any third person or entity or make any use of
any of the Confidential Information, except for the benefit of the Company or as
is strictly required in the course of the Employment of the Employee. Employee
acknowledges that the unauthorized disclosure of
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Confidential Information may be highly prejudicial to their interests, an
invasion of privacy, and an improper disclosure of trade secrets.
(c) Injunction. The Employee agrees that it would be difficult
to measure any damages caused to the Company which might result from any breach
by the Employee of the promises set forth in this Section, and that in any event
money damages would be an inadequate remedy for any such breach. Without
limiting any other remedies or rights of the Company hereunder, the Employee
agrees that if the Employee breaches, or proposes to breach, any portion of this
Agreement, the Company shall be entitled to an injunction or other appropriate
equitable relief to restrain any such breach without showing or proving any
actual damage to the Company.
7. Inventions.
(a) Inventions. For purposes of this Agreement, "Inventions"
means any and all inventions, discoveries, designs, developments, innovations,
concepts, improvements, techniques, processes, systems, structures,
technologies, software, hardware, formulas, know-how, products, work product and
data, whether or not patentable or reduced to practice or in a commercially
useable form, and all original works of authorship, whether or not
copyrightable, and all derivative works thereof, which result from work
performed by Employee for the Company (either alone or in cooperation with
others) or with the tools or equipment of the Company or which relate to or may
be useful in any business or any actual or demonstrably anticipated research or
development engaged in or planned by the Company.
(b) Disclosure. Employee shall promptly disclose in writing to
the Chairman or Board of Directors any and all Inventions made, conceived,
reduced to practice, or learned by Employee, either alone or in cooperation with
others, during the period of the Employment of the Employee with the Company
(including off-duty hours) that to any extent relate to or may be useful in any
business or any actual or demonstrably anticipated research or development
engaged in or planned by the Company, even if any such invention is claimed for
any reason to belong to Employee or to a person or entity other than the
Company.
(c) Assignment. Employee agrees that all Inventions made,
conceived, reduced to practice, or learned by Employee during the Employment of
the Employee (including off-duty hours), either alone or in cooperation with
others, are "works made for hire" and belong to and are the sole property of the
Company and are Inventions of the Company subject to the provisions of this
Agreement. Employee hereby assigns to the Company, without royalty or further
compensation, all right, title, and interest Employee has or may have or may
acquire in and to any and all such Inventions and all modifications and
enhancements and derivations thereof, including but not limited to patents and
copyrights. Employee agrees that the Company or its designee will be the sole
owner of all domestic and foreign patents, patent rights, copyrights, and all
other rights pertaining to all such Inventions.
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(d) Evidence of Assignment. At the request of the Company,
Employee agrees to sign and deliver to the Company, either during or subsequent
to the Employment of the Employee, such other documents or instruments as the
Company considers desirable to evidence the assignment to the Company of any and
all rights of Employee, if any, in any Inventions and the Company's ownership of
the Inventions. Employee further agrees as to all such Inventions to assist the
Company as requested, either during or subsequent to the Employment of the
Employee, in obtaining, registering, and from time to time enforcing in any
country, the Company's rights to the Inventions, including without limitation
the testifying in a suit or other proceeding involving any Invention. If such
assistance is rendered by Employee subsequent to the Employment of the Employee
with the Company, Employee shall be reimbursed for all reasonable expenses
incurred and for any and all lost wages or salary related thereto.
(e) California Labor Code Section 2870. Any provision in this
Agreement that requires Employee to assign rights to an Invention shall not
apply to any Invention that is exempted pursuant to the provisions of California
Labor Code Section 2870, the text of which is attached to this Agreement as
Exhibit A. This section provides that the requirement to assign "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 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."
8. Prior Knowledge and Inventions. Except as is disclosed on Schedule 1
to this Agreement, Employee has no knowledge of the Confidential Information,
other than information Employee has learned or observed from the Company.
Employee has disclosed on Schedule 1 a complete list of all inventions, original
works of authorship, developments, improvements and trade secrets that Employee
claims are proprietary to Employee, and that Employee desires to exclude from
the application of this Agreement. Employee represents that this list is
complete to the best of his knowledge, and that the exclusion of any inventions
from the list will not materially affect Employee's ability to perform his
obligations under this Agreement. The Company agrees to receive and hold all
such disclosures in confidence.
9. Prior Commitments. Employee has no other agreements, relationships,
or commitments to any other person or entity that conflict with Employee's
obligations to the Company under this Agreement, except as disclosed on Schedule
1. Employee shall not disclose to the Company, or use, or induce the Company to
use, any proprietary or confidential information or trade secrets of others.
Employee represents and warrants that Employee has returned all property and
confidential information belonging to all prior or concurrent companies
employing or engaging Employee.
10. Non-Competition and Non-Solicitation. At all times during which the
Employee is employed by the Company and for one (1) year after termination of
the
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Employment of the Employee hereunder, except in connection with such Employee's
duties as an employee or consultant of the Company or its subsidiaries, the
Employee (i) will not, directly or indirectly, whether as an officer, director,
consultant, agent, employee, contractor, owner, partner, joint venturer or
stockholder of another entity, engage, participate, assist or invest in any
Competing Business (as hereinafter defined), other than as a stockholder of less
than one percent (1%) of the equity securities of a publicly held corporation;
(ii) will not in any manner directly or indirectly solicit any of the Company's
employees for a Competing Business or otherwise induce or attempt to induce such
employees to terminate their employment with the Company during the period of
Employment of the Employee and for a period of one (1) year thereafter except as
described on Schedule 1; and (iii) will refrain from soliciting or encouraging
any customer or supplier to terminate or otherwise modify adversely its business
relationship with the Company. The Employee understands that the restrictions
set forth in this Section are intended to protect the Company's interest in its
Confidential Information and established employee, customer and supplier
relationships and goodwill, and agrees that such restrictions are reasonable and
appropriate for this purpose. "Competing Business" shall mean a business which
directly competes against the application development or RAD tool products
designed or distributed by the Company or any of its subsidiaries during the
period of employment of the Employee.
11. Cooperation. During and after the Employment of the Employee, (i)
the Employee shall cooperate fully with the Company in the defense or
prosecution of any claims or actions now in existence or which may be brought in
the future against or on behalf of the Company which relate to events or
occurrences that occurred while the Employee was employed by the Company, and
(ii) the Employee shall cooperate fully with the Company in connection with any
investigation or review of any federal, state or local regulatory authority
related to events that occurred during the Employment of the Employee. The
Employee's cooperation shall include, but not be limited to, meeting with
counsel to prepare for discovery or trial and to act as a witness on behalf of
the Company at mutually convenient times. The Company shall reimburse the
Employee for any actual out-of-pocket expenses incurred by the Employee in
connection with this Section.
12. Termination. The Employment of the Employee shall terminate as set
forth in this Section:
(a) Termination by the Company for Cause. In addition to its
other rights and remedies, the Company may terminate the employment of Employee
immediately "for cause" upon the occurrence of any of the following events:
(i) Materially dishonest statements or acts of the
Employee with respect to the Company or any affiliate;
(ii) Unethical practices or conduct by the Employee in
connection with the business of the Company or any affiliate;
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(iii) The commission of any felony (excluding DWI and
similar traffic offenses) or any crime involving moral turpitude;
(iv) The use of alcohol or drugs by the Employee if the
Company determines, in its sole discretion, that such use of such alcohol or
drugs materially affects the performance of Employee's duties under this
Agreement or otherwise violates Company policy;
(v) Gross negligence or willful misconduct of the
Employee with respect to the Company or any affiliate of the Company;
(vi) The imparting, disclosure or use of any
Confidential Information in material violation of this Agreement; or
(vii) Material breach by the Employee of any of the
Employee's obligations under this Agreement.
(b) Termination At Will by Either Party. Either party also may
terminate this Agreement without cause immediately upon written notice to the
other party at any time without cause.
(c) Other Events of Termination. This Agreement shall also
terminate in the event of the death of Employee; or the medically determinable
physical or mental impairment of Employee which prevents Employee from fully
performing the essential functions of his position with the Company, which
impairment can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than twelve (12) months.
(d) No Termination Benefits. Except as otherwise required by
law, all compensation and other benefits payable to the Employee under this
Agreement shall terminate on the date of termination of the Employment of the
Employee.
13. Duties Upon Termination.
(a) Documents. Upon termination of the Employment of Employee,
Employee shall not retain and shall promptly and without request deliver to the
Company all documents and data and all copies thereof pertaining to (i) his
employment, (ii) the Confidential Information, and (iii) the Inventions, whether
prepared by Employee or otherwise in the possession or control of the Employee
or the Employee's agent. The Employee also agrees to sign and deliver the
Termination Certification attached hereto as Exhibit B to this Agreement or a
substantially similar certification as may be requested by the Company.
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(b) Continuing Obligations. The Employee further agrees that
following termination of his employment, he shall continue to be bound by the
terms and restrictions of this Agreement relating to nonsolicitation of
employees except as described on Schedule 1, Confidential Information and
Inventions.
14. Integration. This Agreement and all exhibits and schedules attached
hereto contain the entire agreement of the parties relating to the subject
matter hereof and supersede any and all other agreements, discussions or
understandings of any kind between the parties with respect thereto; provided
however that (a) this Agreement shall not supersede any separate stock option
agreement between the Company and the Employee, and (b) any confidential or
proprietary information disclosed between the parties pursuant to any prior or
superseded agreement shall be part of the "Confidential Information" for all
purposes hereof. No waiver, amendment or modification of any provision of this
Agreement shall be effective unless in writing and signed by authorized
representatives of both parties.
15. Assignment; Successors and Assigns. This Agreement and the rights
and obligations of the Employee under this Agreement are personal and may not be
assigned, transferred, pledged or encumbered by the Employee. The Company shall
be entitled to assign any and all of its rights and obligations hereunder.
Subject to the foregoing, this Agreement shall inure to the benefit of and be
binding upon the parties hereto, the officers, directors, employees, agents,
owners, shareholders, representatives, successors and assigns of the Company,
and the heirs, devisees, spouses, agents, representatives, successors and
assigns of the Employee.
16. Enforceability. If any portion or provision of this Agreement
(including, without limitation, any portion or provision of any section of this
Agreement) shall to any extent be declared illegal or unenforceable by a court
of competent jurisdiction, then the remainder of this Agreement, or the
application of such portion or provision in circumstances other than those as to
which it is so declared illegal or unenforceable, shall not be affected thereby,
and each portion and provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
17. Waiver. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of any party to
require the performance of any term or obligation of this Agreement, or the
waiver by any party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
18. Notices. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and delivered
in person or sent by a nationally recognized overnight courier service or by
registered or certified mail, postage prepaid, return receipt requested, to the
Employee at the last address the Employee has filed in writing with the Company
or, in the case of the Company, at its principal place of business in
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the United States, attention of the Chairman, and shall be effective on the date
of delivery in person or by courier or five (5) days after the date mailed.
19. Amendment. This Agreement may be amended or modified only by a
written instrument signed by the Employee and by a duly authorized
representative of the Company.
20. Governing Law. This Agreement shall be governed by the laws of the
State of California without reference to principles of conflicts of law.
21. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be taken to be
an original; but such counterparts shall together constitute one and the same
document.
22. Legal Counsel; Certifications.
a. Employee acknowledges, represents and warrants that he has
had the opportunity to be represented by and to fully consult with independent
legal counsel of Employee's own choosing in connection with the terms and
conditions of this Agreement and all matters or issues related thereto; and that
Employee has conducted such an independent investigation of the Company and its
business and prospects as Employee has deemed necessary.
b. EMPLOYEE FURTHER CERTIFIES THAT EMPLOYEE HAS CAREFULLY READ
THIS AGREEMENT, UNDERSTANDS ITS TERMS, AND FREELY AND VOLUNTARILY AGREES TO
THESE TERMS. EMPLOYEE FURTHER ACKNOWLEDGES THAT EMPLOYEE HAS REVIEWED EXHIBIT A
AND SCHEDULE 1 AND IN THIS CONNECTION HAS RECEIVED A COPY OF THE WRITTEN
NOTIFICATION TO EMPLOYEE CONTAINING THE TEXT OF CALIFORNIA LABOR CODE SECTION
2870.
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IN WITNESS WHEREOF, this Employment Agreement has been executed and
entered into by the parties as of the date first above written.
OMNIS TECHNOLOGY CORPORATION
By: /s/ XXXXXXX XXXXX
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Xxxxxxx Xxxxx, President
EMPLOYEE:
/s/ XXXXX XXXXX
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Xxxxx Xxxxx
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EXHIBIT A
WRITTEN NOTIFICATION TO EMPLOYEE
In accordance with California Labor Code Section 2870, you are hereby
notified that the Employment Agreement between you and Omnis Technology
Corporation (the "Company") does not require you to assign to the Company any
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 that does not relate to the business of the Company or to the
Company's actual or demonstrably anticipated research or development, and does
not result from any work performed by you for the Company.
The text of California Labor Code Section 2870 is set forth below:
"CALIFORNIA LABOR CODE Section 2870
INVENTION ON OWN TIME -- EXEMPTION FROM AGREEMENT.
"(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 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.
"(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."
I hereby acknowledge receipt of this written notification.
Dated: As of ______________, 1999 ____________________________
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SCHEDULE 1
In the event the Company is sold, the following employees (or future
employees) may be solicited, if such solicitation would not materially impact
the sale:
[INTENTIONALLY OMITTED]
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EXHIBIT B
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 the Employment
Agreement between Omnis Technology Corporation and me ("Agreement") or any
copies of such information, or other documents or materials, equipment, or other
property belonging to the Company or any of its customers or subject to any
agreement between the Company and any third party.
I further certify that I have complied with and will continue to comply
with the terms of the Agreement which remain enforceable by their terms
following termination of my employment, including but not limited to (a) the
disclosure and reporting of any Inventions as defined in the Agreement, and (b)
all confidentiality, nondisclosure and/or use restrictions imposed by the
Agreement.
Dated:
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Name:
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