Exhibit 10.3
EMPLOYMENT AGREEMENT
between
TENFOLD CORPORATION and XXXX X. XXXX
This Employment Agreement (the "Agreement"), is effective as of August 1,
2001 (the "Effective Date"), by and between Xxxx X. Xxxx ("Employee") and
TenFold Corporation, a Delaware corporation (the "Company").
1. TERM OF AGREEMENT. This Agreement shall commence as of the Effective
-----------------
Date, and shall have a term of two (2) years and one day (the "Original Term").
Subject to each party's obligations set forth below, this Agreement may be
terminated by either party, with or without cause, on thirty (30) days' written
notice to the other party. After the end of the Original Term, this Agreement
(and simultaneously Employee's employment) shall be automatically extended for
additional successive one (1) year periods unless the parties hereto mutually
agree in writing to terminate the Agreement in accordance with the terms hereof
prior to the commencement of any such one (1) year period.
2. DUTIES.
------
a. POSITION. For the term of the Agreement, Employee shall be
--------
employed as the Company's Chief Financial Officer and Senior Vice President and
will report to the Company's Chief Executive Officer.
b. OBLIGATIONS TO THE COMPANY. Employee agrees that he will at all
--------------------------
times, to the best of his ability and experience, loyally and conscientiously
perform all of the duties and obligations required of and from Employee pursuant
to the terms hereof or as directed by the Company's Chief Executive Officer.
During the term of Employee's employment relationship with the Company, Employee
further agrees that he will devote all of his business time, attention and
effort to the business of the Company and will use his reasonable best efforts
to promote the interests of the Company, and the Company will be entitled to all
of the benefits and profits arising from or incident to all such work services
and advice; provided, however, that Employee may perform and accept compensation
for personal services of an incidental nature rendered to a party other than the
Company if the performance of such services is approved by the Company's Chief
Executive Officer (such approval not to be unreasonably withheld) and does not
impair Employee's ability to perform his duties hereunder.
3. AT-WILL EMPLOYMENT. The Company and Employee acknowledge that
------------------
Employee's employment is and shall continue to be at-will, as defined under
applicable law. If Employee's employment terminates for any reason, Employee
shall not be entitled to any payments, benefits, damages, award or compensation
other than as provided in this Agreement, or any enhanced compensation or
benefit, except as may otherwise be available under the Company's established
written plans and written policies at the time of termination under such plans'
general terms; provided, however, that any severance benefit due Employee shall
be only as set forth in this Agreement.
4. COMPENSATION. For the duties and services to be performed by
------------
Employee hereunder, the Company shall pay Employee, and Employee agrees to
accept, the base salary, options, bonuses and other benefits described below in
this Section 4.
a. SALARY. Employee shall receive a base monthly salary of
------
$17,016.67 which is equivalent to $215,000 on an annualized basis (the "Base
Salary"). Employee's Base Salary will be payable in equal payments per month
pursuant to the Company's normal payroll practices. The Base Salary shall be
reviewed from time to time by the Company's Chief Executive Officer and the
compensation committee of the Company's board of directors (hereinafter
"Compensation Committee") and any change will be effective as of the date
determined appropriate by the Company's Chief Executive Officer and the
Compensation Committee. Effective as of the date of any such change, the Base
Salary as changed shall be considered the new Base Salary for purposes of this
Agreement.
b. STOCK OPTIONS AND OTHER INCENTIVE PROGRAMS. Employee shall
------------------------------------------
be eligible to participate in the Company's Stock Option Plan, Employee Stock
Purchase Plan, and any other incentive programs available to officers or
employees of the Company. The Company's Chief Executive Officer shall, within
five (5) business days of the execution of this Agreement, recommend to the
Company's board of directors and the Compensation Committee that Employee be
awarded an option to purchase five hundred thousand (500,000) shares (as
adjusted for any stock split or similar event) of the Company's common stock on
the date this Agreement is approved by the Company's board of directors and the
Compensation Committee, which approval shall be sought by written consent as
soon as practical. Such option shall provide for an exercise price equal to the
stock's fair market value on the grant date, and shall first become exercisable
to the extent of 25% of total shares on the first anniversary of the Effective
Date, then another 6.25% of total shares after the end of each three-month
period commencing on the first anniversary of the Effective Date, until the all
of the shares under the option shall be fully exercisable; provided, however,
that in the event of a Change of Control (i) all of the shares under such option
shall become fully exercisable five (5) days before a Change in Control and (ii)
the terms of Section 14 of the Company's 1999 Stock Plan shall apply; provided,
however, that in the event of an conflict between clauses (i) and (ii), clause
(i) shall govern. Options previously granted Employee by the Company shall
remain in full force and effect.
c. BONUSES. The Company will provide Employee with an
-------
opportunity to earn an annual cash bonus (the "Annual Bonus") each year during
the term of this Agreement of up to one hundred percent (100%) of the Base
Salary in additional annual variable compensation, based upon the Company's
performance and Employee's achievement of key objectives that contribute to the
Company's success. Employee's entitlement to and the amount of the Annual Bonus
shall be determined in the reasonable discretion of the Company's Chief
Executive Officer. For calendar years after 2001, the Company and Employee shall
agree in writing to target objectives and an Annual Bonus Plan. Employee
acknowledges that given the Company's current financial condition, the Company
is unlikely to pay Employee an Annual Bonus at the end of calendar year 2001.
Notwithstanding the foregoing sentence, the Company agrees that it will pay any
deemed annual Annual Bonus under Section 5 below. The Company's Chief Executive
Officer and Employee shall mutually agree upon Employee's key objectives at the
start of each calendar year that will be used to determine the actual amount of
the Employee's Annual Bonus.
d. VACATION. Employee shall be entitled to three weeks vacation
--------
during each year of employment. Employee shall accrue any unused vacation.
e. ADDITIONAL BENEFITS. Employee will be eligible to
-------------------
participate in the Company's employee benefit plans of general application,
including without limitation, those plans providing medical, disability and life
insurance in accordance with the rules established for individual participation
in any such plan and under applicable law. Employee will be eligible for sick
leave in
-2-
accordance with the policies in effect during the term of this Agreement and
will receive such other benefits as the Company generally provides to its other
senior executive employees.
f. REIMBURSEMENT OF EXPENSES. Employee shall be authorized to
-------------------------
incur on behalf and for the benefit of, and shall be reimbursed by, the Company
for reasonable business expenses, provided that such expenses are substantiated
in accordance with Company policies. Company shall reimburse Employee promptly.
x. XXXXXX PARACHUTE PAYMENTS. If a payment pursuant to this
-------------------------
Agreement would result in (or increase) an excise tax under Internal Revenue
Code ss.4999(a), the excess parachute payment shall be reduced to that amount
(if any) which maximizes the difference between the excess parachute payment and
the excise tax.
h. CHANGE IN CONTROL. For purposes of this Agreement, "Change
-----------------
of Control" means the occurrence of any of the
following events:
i. Any "person," as such term is currently used in
Section 13(d) of the Securities Exchange Act of 1934, other than Xxxxxxx X.
Xxxxxx and/or his affiliates, becomes a "beneficial owner," as such term is
currently used in Rule 13d-3 promulgated under that Act of forty percent
(40%) or more of the Voting Stock of the Company. For purposes of this
Agreement, Voting Stock means the issued and outstanding capital stock or
other securities of any class or classes having general voting power under
ordinary circumstances, in the absence of contingencies, to elect the
directors of a corporation.
ii. The first day on which a majority of the Board
consists of individuals other than Incumbent Directors, which term means
the members of the Board on the date hereof; provided that any individual
becoming a director subsequent to such date whose election or nomination
for election was supported by two-thirds of the directors who then
comprised the Incumbent Directors shall be considered to be an Incumbent
Director.
iii. The Board adopts any plan of liquidation providing
for the distribution of all or substantially all of the Company's assets.
iv. All or substantially all of the assets or business
of the Company are disposed of in any one or more transactions pursuant to
a merger, consolidation or other transaction (unless the shareholders of
the Company immediately prior to such merger, consolidation or other
transaction beneficially own, directly or indirectly, in substantially the
same proportion as they owned the Voting Stock, all of the Voting Stock or
other ownership interests of the entity or entities, if any, that succeed
to the business of the Company).
v. The Company combines with another company and is
the surviving corporation but, immediately after the combination, the
shareholders of the Company immediately prior to the combination hold,
directly or indirectly, fifty percent (50%) or less of the Voting Stock of
the combined company, (there being excluded from the number of shares held
by such shareholders, but not from the Voting Stock of the combined
company, any shares received by affiliates of such other company in
exchange for securities of such other company).
-3-
i. PROFESSIONAL FEES AND CONTINUING EDUCATION. The Company shall
------------------------------------------
reimburse Employee for professional dues and reasonable and pre-approved
continuing education expenses relating to maintaining his certified public
accountant's license.
5. TERMINATION OF EMPLOYMENT AND SEVERANCE BENEFITS.
------------------------------------------------
a. TERMINATION OF EMPLOYMENT. This Agreement may be terminated
-------------------------
during its Original Term (or any extension thereof) upon the occurrence of any
of the following events:
i. The Employee's Termination for Cause (as defined in Section
6):
ii. The Company's termination of Employee without Cause, which
determination may be made by the Company at any time at the Company's sole
discretion, for any or no reason ("Termination Without Cause");
iii. The Employee's "Constructive Termination" (as defined in
Section 7); or
iv. The effective date of a written notice sent to the Company
from Employee stating that Employee is electing to terminate his employment
with the Company ("Voluntary Termination").
x. XXXXXXXXX BENEFITS. Employee shall be entitled to receive
------------------
severance benefits upon termination of employment only as set forth in this
subsection.
i. VOLUNTARY TERMINATION. If Employee's employment terminates by
---------------------
Voluntary Termination, then all compensation under this Agreement shall
cease to accrue as of the date of termination and Employee shall not be
entitled to receive payment of any severance benefits. Employee's benefits
will be continued under the Company's then existing benefit plans and
policies in accordance with such plans and policies in effect on the date
of termination, and any earned Base Salary shall be paid through normal
payroll.
ii. INVOLUNTARY TERMINATION. If Employee's employment is
-----------------------
terminated other than by reason of Employee's death, having become Totally
Disabled under subsection (d), Voluntary Termination or Termination for
Cause (an "Involuntary Termination"), Employee's regular compensation shall
cease to accrue under this Agreement as of the date of termination.
Employee shall then be entitled to payment of all regular compensation
earned through the date of termination and a pro rata portion of any deemed
target Annual Bonus for the year that includes the termination within
thirty (30) days of the termination. Such deemed target Annual Bonus shall
equal the full target Annual Bonus for the year multiplied by a fraction,
the numerator of which is the number of days in the year through the date
of the Employee's termination and the denominator of which is 365. In
addition, Employee shall be entitled to receive a monthly severance
benefit, payable through the Company's normal payroll, beginning on the
first payroll date that follows Employee's termination date, and continuing
for six (6) months. Such monthly severance benefit shall be equal to
Employee's Base Salary. In addition, immediately upon an Involuntary
Termination all vested options to purchase Company stock that are either
held by Employee, shall become fully exercisable through the one year
anniversary of the date of the Involuntary Termination. If Employee elects
to continue to receive health insurance benefits following termination, the
Company shall pay the full cost of such continuation of coverage for six
(6) months after the
-4-
date following the Involuntary Termination. A Constructive Termination (as
defined below) will be treated as an Involuntary Termination.
iii. TERMINATION FOR CAUSE. If Employee's employment is
---------------------
Terminated for Cause, then Employee shall be entitled to receive Employee's
Base Salary through the date of termination. Employee's Base Salary shall
cease to accrue after the date of such Termination for Cause. All of
Employee's right to the Annual Bonus which accrue or become payable after
the date of such Termination for Cause shall terminate and cease upon such
Termination for Cause. In addition, all other compensation payable under
this Agreement shall cease as of the date of termination and Employee shall
not be entitled to receive payment of severance benefits. Employee's
benefits will be continued under the Company's then existing benefit plans
and policies in accordance with such plans and policies in effect on the
date of termination.
c. DEATH. If Employee should die during the term of this Agreement
-----
while he remains employed under this Agreement and not Totally Disabled (as
defined in subsection (d)), the Company shall pay to Employee's estate a pro
rata portion of any deemed target Annual Bonus for the year of Employee's death
within thirty (30) days of Employee's death. Such deemed target Annual Bonus
shall equal the full target Annual Bonus for the year multiplied by a fraction,
the numerator of which is the number of days in the year through the date of the
Employee's death and the denominator of which is 365. Base Salary and all other
benefits are to be paid up to the date of the death of the Employee.
d. DISABILITY. This Agreement shall also terminate upon the date the
----------
Employee shall be deemed to be Totally Disabled. The Employee will be deemed
"Totally Disabled" if the Employee is unable as a result of a physical injury or
physical or mental illness to participate materially in the Company's business
and to perform substantially all of the duties required of his under the terms
of this Agreement for an aggregate total of ninety (90) days (whether
consecutive or non-consecutive) during any three hundred sixty (360) day period
during the term hereof. If Employee's employment with the Company is terminated
because of Employee's Total Disability, the Company shall pay the Employee his
Base Salary and other benefits through the effective Termination Date and a pro
rata portion of any deemed target Annual Bonus for the year Employee became
Totally Disabled within thirty (30) days of the date that it is determined that
Employee is Totally Disabled. Such deemed target Annual Bonus shall equal the
full target Annual Bonus for the year multiplied by a fraction, the numerator of
which is the number of days in the year through the day before the first date
the Employee is deemed to be Totally Disabled and the denominator of which is
365.
6. DEFINITION OF TERMINATION FOR CAUSE. For purposes of this Agreement, a
-----------------------------------
"Termination for Cause" means the Employee's termination by the Company
following the discovery of the occurrence of one or more of the following
events:
a. Employee's willful misconduct or gross negligence in the
performance of his duties hereunder, including Employee's refusal to comply in
any material respect with the legal directive of the Company's Chief Executive
Officer, or any committee thereof, so long as such directives are not
inconsistent with the Employee's position and duties, and such refusal to comply
is not remedied within five (5) working days after receipt of written notice
from the Company, which written notice shall state that failure to remedy such
conduct may result in Termination for Cause;
-5-
b. Dishonest or fraudulent conduct that materially discredits the
Company or is materially detrimental to the Company's reputation, business,
operations, or relations with its employees, suppliers or customers;
c. Employee's incurable material breach of this Agreement or any
element of the Company's Employee Proprietary Information and Invention
Assignment Agreement, including without limitation, Employee's theft or other
deliberate misappropriation of the Company's proprietary information;
d. Employee's conviction of a felony or of a misdemeanor involving
fraud, dishonesty or moral turpitude with respect to the Company or any of its
customers or suppliers;
e. Employee's habitual abuse of alcohol or prescription drugs, other
than in doses prescribed by a licensed physician, or abuse of controlled
substances that has a material adverse impact on his job performance; or
f. Employee fails to meet minimum performance standards established
by the Company's Chief Executive Officer and set forth in a mutually agreed
written performance improvement plan and consistent with normal industry and
professional practices, such agreement not to be unreasonably withheld, with a
minimum ninety (90) day period to cure such performance deficiencies.
7. DEFINITION OF CONSTRUCTIVE TERMINATION. A "Constructive Termination"
--------------------------------------
shall be deemed to occur if without Employee's express written consent (a)
either (i) there is a material adverse change in Employee's position, title,
stature, duties or responsibilities which remains uncorrected for thirty (30)
days or more following Employee's written notice to the Company, or (ii) a
reduction of Employee's Base Salary and (b) within 90 days of the occurrence of
any event listed in clause (a), Employee provides the Company written notice
that Employee is electing to terminate his employment with the Company.
8. CONFIDENTIALITY AND INDEMINIFICATION AGREEMENTS. Employee has signed
-----------------------------------------------
an Employee Proprietary Information and Invention Agreement, dated as of the
Effective Date, attached hereto as Exhibit A, which agreement remains in full
force and effect. Employee has signed an Indemnification Agreement, dated as of
the Effective Date, attached hereto as Exhibit B, which agreement remains in
full force and effect.
9. NON-COMPETITION, ETC.
---------------------
a. Employee covenants and agrees that during the Original Term or
any extension thereof plus for the period of time he receives Severance Benefits
due to an Involuntary Termination, Employee (i) shall not engage, anywhere
within the geographical areas in which the Company is then conducting its
business operations, directly or indirectly, alone, in association with or as a
shareholder, principal, agent, partner, officer, director, employee or
consultant of any other organization, in any business (a "Competitive Business")
which directly competes with any business then being conducted by the Company
and in which Employee was directly involved; provided, that the foregoing shall
not prohibit the Employee from owning a maximum of two percent (2%) of the
common stock of any publicly traded corporation; (ii) shall not solicit to leave
the employ of the Company or hire any officer, employee or consultant of the
Company; (iii) shall not solicit, divert or to take away, the business or
patronage of any of the customers or accounts of the Company, which were
contacted, solicited or served by the Employee at any time during the Employee's
employment; and (iv) shall not
-6-
acquire, or assist any other party in acquiring, any shares of the Company,
or otherwise seek, or assist any other party in seeking to gain control of the
Company.
b. The Employee acknowledges and agrees that because of the nature
of the business in which the Company is engaged and because of the nature of the
confidential information to which the Employee has access during his employment
as described in Exhibit A, it would be impractical and excessively difficult to
determine the actual damages of the Company in the event the Employee breached
any of the covenants of subsection (a) or Exhibit A, and remedies at law (such
as monetary damages) for any breach of the Employee's obligations under
subsection (a) or Exhibit A would be inadequate. The Employee therefore agrees
and consents that if he commits any breach of a covenant under subsection (a) or
Exhibit A or threatens to commit any such breach, the Company shall have the
right (in addition to, and not in lieu of, any other right or remedy that may be
available to it) to seek temporary and permanent injunctive relief from a court
of competent jurisdiction. Employee acknowledges and agrees that subsection (a)
of this Section is reasonable and is necessary for the legitimate protection of
the Company, and will not deprive Employee of a reasonable opportunity to
practice his profession or trade. With respect to any provision of subsection
(a) or Exhibit A that is finally determined to be unenforceable, the Employee
and the Company hereby agree that this Agreement or any provision hereof shall
be reformed in a manner that retains as much of the original intent of the
Agreement as is both practicable and consistent with applicable law.
10. CONFLICTS. Employee represents that his performance of all the terms
---------
of this Agreement will not breach any other agreement to which Employee is a
party. Employee has not, and will not during the term of this Agreement, enter
into any oral or written agreement in conflict with any of the provisions of
this Agreement. Employee further represents that he is entering into or has
entered into an employment relationship with the Company of his own free will.
11. SUCCESSORS. Any successor to the Company (whether direct or indirect
----------
and whether by purchase, lease, merger, consolidation, liquidation or otherwise)
to all or substantially all of the Company's business and/or assets shall assume
the obligations under this Agreement and agree expressly to perform the
obligations under this Agreement in the same manner and to the same extent as
the Company would be required to perform such obligations in the absence of a
succession. The terms of this Agreement and all of Employee's rights hereunder
shall inure to the benefit of, and be enforceable by, Employee's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
12. NOTICE. Any notice required or permitted by this Agreement shall be
------
in writing and shall be deemed sufficient on the date of delivery, when
delivered personally or by overnight courier or sent by telegram or fax, or
forty-eight (48) hours after being deposited in the U.S. mail, as certified or
registered mail, with first class postage prepaid, and addressed to the party to
be notified at such party's address as set forth below, or as subsequently
modified by written notice. Employee's address is 0000 Xxxx Xxxxxx Xxxxxx,
Xxxxxx, Xxxx 00000, Facsimile: (000) 000-0000. Company's address is TenFold
Corporation, Attn: General Counsel, 000 Xxxx Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxx,
Xxxx 00000, Facsimile: (000) 000-0000.
13. MISCELLANEOUS PROVISIONS.
------------------------
a. NO DUTY TO MITIGATE. Employee shall not be required to mitigate
-------------------
the amount of any payment contemplated by this Agreement (whether by seeking new
employment or in
-7-
any other manner), nor shall any such payment be reduced by any earnings that
Employee may receive from any other source.
b. WAIVERS, ETC. No amendment of this Agreement and no waiver of any
-------------
one or more of the provisions hereof shall be effective unless set forth in
writing by such person against whom enforcement is sought.
c. SOLE AGREEMENT. With the exception of the Employee Proprietary
--------------
Information and Invention Agreement, dated as of the Effective Date, the
Indemnification Agreement, dated as of the Effective Date, and stock options
granted Employee, this Agreement constitutes the sole agreement of the parties
and supersedes all oral negotiations and prior writings with respect to the
subject matter hereof. To the extent this Agreement affects any pre-existing
award of equity-based compensation, such award shall be deemed amended
consistent with this Agreement.
d. AMENDMENT. This agreement may be amended, modified, suppressed or
---------
canceled only by an agreement in writing executed by both parties hereto.
e. CHOICE OF LAW. The validity, interpretation, construction and
-------------
performance of this Agreement shall be governed by the laws of the State of
California, without giving effect to the principles of conflict of laws.
f. VENUE. All disputes, claims or proceedings between the parties
-----
related to the validity, construction or performance of this Agreement shall be
subject to the choice of jurisdiction of the state and federal courts of the
State of California. The parties irrevocably consent to jurisdiction in the
courts of the State of California for resolution of any claim or dispute
hereunder, and such shall be the exclusive forum for the resolution of such
claim or dispute.
g. SEVERABILITY. If any term or provision of this Agreement or the
------------
application thereof to any circumstance shall, in any jurisdiction and to any
extent, be invalid or unenforceable, such term or provision shall be ineffective
as to such jurisdiction to the extent of such invalidity or unenforceability
without invalidating or rendering unenforceable the remaining terms and
provisions of this Agreement or the application of such terms and provisions to
circumstances other than those as to which it is held invalid or unenforceable,
and a suitable and equitable term or provision shall be substituted therefor to
carry out, insofar as may be valid and enforceable, the intent and purpose of
the invalid or unenforceable term or provision.
h. COUNTERPARTS. This Agreement may be executed in counterparts, each
------------
of which shall be deemed an original, but all of which together will constitute
one and the same instrument.
[SIGNATURE PAGE TO FOLLOW]
-8-
The parties have executed this Agreement as of the Effective Date.
TENFOLD CORPORATION
___________________________________
By: Xxxxx X. Xxxxxx
Title: President and Chief Executive Officer
EMPLOYEE
___________________________________
Xxxx X. Xxxx
-9-
EXHIBIT A
EMPLOYEE PROPRIETARY INFORMATION
AND INVENTION AGREEMENT
TENFOLD CORPORATION
and
i. AFFILIATED COMPANIES
EMPLOYEE PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
In consideration of my continued employment by TenFold Corporation or an
affiliate of TenFold Corporation, as the case may be (in each case the "Company"
and collectively, the "Companies"), I hereby agree to certain restrictions
placed by the Companies on my use and development of information and technology
of the Companies, as more fully set out below.
1. Proprietary Information.
(a) Confidential Restrictions. I understand that, in the course of my
work as an employee of the Company, I have had and may have access to
Proprietary Information (as defined below) concerning the Companies and their
respective clients. I acknowledge that each of the Companies have developed,
compiled, and otherwise obtained, often at great expense, this information,
which has great value to the Companies' businesses. I agree to hold in strict
confidence and in trust for the sole benefit of the relevant Company all
Proprietary Information and will not disclose any Proprietary Information,
directly or indirectly, to anyone outside of the relevant Company, or use, copy,
publish, summarize, or remove from the premises of the Companies such
information (or remove from the premises any other property of any Company)
except during my employment to the extent necessary to carry out my
responsibilities as an employee of the Company. I further understand that the
publication of any Proprietary Information through literature or speeches must
be approved in advance in writing by the Companies.
(b) Proprietary Information Defined. I understand that the reference
to "Proprietary Information" in this Agreement means all information and any
idea in whatever form, tangible or intangible, whether disclosed to or learned
or developed by me, pertaining in any manner to the business of any of the
Companies (or any affiliate of any of them that might be formed) or to any of
the Companies' clients, consultants, or business associates unless: (i) the
information is or becomes publicly known through lawful means; (ii) the
information was rightfully in my possession or part of my general knowledge
prior to my employment by the Company; or (iii) the information is disclosed to
me without confidential or proprietary restriction by a third party who
rightfully possesses the information (without confidential or proprietary
restriction) and did not learn of it, directly or indirectly, from any of the
Companies. I further understand that the Companies consider the following
information to be included, without limitation, in the definition of Proprietary
Information: (w) formulas, computer programs, teaching techniques, processes,
trade secrets, electronic codes, proprietary techniques, inventions,
improvements, and research projects; (x) information about costs, profits,
markets, sales, and lists of customers; (y) plans for future
A-1
development and new product concepts; and (z) all documents, books, papers,
drawings, models, sketches, and other data of any kind and description,
including electronic data recorded or retrieved by any means, that have been or
will be given to me by any of the Companies (or any affiliate of any of them
that might be formed), as well as written or verbal instructions or comments.
(c) Third Party Information. I recognize that each of the Companies
have received and in the future will receive from third parties their
confidential or proprietary information subject to a duty on that Company's part
to maintain the confidentiality of such information and to use it only for
certain limited purposes. I agree that I owe each of the Companies and such
third parties, during the term of my employment and thereafter, a duty to hold
all such confidential or proprietary information in the strictest confidence and
not to disclose it to any person, firm, or corporation (except as necessary in
carrying out my work for the Companies consistent with the relevant Company's
agreement with such third party) or to use it for the benefit of anyone other
than for the relevant Company or such third party (consistent with the relevant
Company's agreement with such third party) without the express written
authorization of the relevant Company.
(d) Interference with Business. During my employment with the Company,
I will not, without the each relevant Company's express consent, engage in any
employment in a competing business of any of the Companies. I agree that, for
six months after termination of my employment with the Company, I will not
recruit or hire any employee of any of the Companies without the relevant
Company's written consent.
2. Inventions.
(a) Defined; Statutory Notice. I understand that during the term of
my employment, there are certain restrictions on my development of technology,
ideas, and inventions, referred to in this Agreement as "Invention Ideas." The
term Invention Ideas means any and all ideas, processes, trademarks, service
marks, inventions, technology, computer programs, original works of authorship,
designs, formulas, discoveries, patents, copyrights, and all improvements,
rights, and claims related to the foregoing that are conceived, developed, or
reduced to practice by me alone or with others except to the extent that
California Labor Code Section 2870 lawfully prohibits the assignment of rights
in such ideas, processes, inventions, etc. I understand that Section 2870(a)
provides:
Any provision in an employment agreement which provides that
an employee shall assign, or offer to assign, any of his or
her rights in an invention to his or her employer shall not
apply to an invention that the employee developed entirely
on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information
except for those inventions that either:
(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.
(2) Result from any work performed by the employee for the
employer.
A-2
(b) Disclosure. I agree to maintain adequate and current written
records on the development of all Invention Ideas and to disclose promptly to
the Company or its designee all Invention Ideas and relevant records, which
records will remain the sole property of the Company or its designee. I further
agree that all information and records pertaining to any idea, process,
trademark, service xxxx, invention, technology, computer program, original work
of authorship, design, formula, discovery, patent, or copyright that I do not
believe to be an Invention Idea, but is conceived, developed, or reduced to
practice by me (alone or with others) during my period of employment, shall be
promptly disclosed to the Company or its designee (such disclosure to be
received in confidence). The Company or its designee shall examine such
information to determine if in fact the idea, process, or invention, etc., is an
Invention Idea subject to this Agreement.
(c) Assignment. I hereby assign to the Company or its designee,
without further consideration, my entire right, title, and interest (throughout
the United States and in all foreign countries), free and clear of all liens and
encumbrances, in and to each Invention Idea, which shall be the sole property of
the Company or its designee, whether or not patentable. In the event any
Invention Idea shall be deemed by the Company or its designee to be patentable
or otherwise registrable, I will assist the Company or its designee (at its
expense) in obtaining letters patent or other applicable registrations thereon
and I will execute all documents and do all other things (including testifying
at the Company's or its designee's expense) necessary or proper to obtain
letters patent or other applicable registrations thereon and to vest the Company
or its designee with full title thereto. Should the Company or its designee be
unable to secure my signature on any document necessary to apply for, prosecute,
obtain, or enforce any patent, copyright, or other right or protection relating
to any Invention Idea, whether due to my mental or physical incapacity or any
other cause, I hereby irrevocably designate and appoint the Company or its
designee and each of its duly authorized officers and agents as my agent and
attorney-in-fact, to act for and in my behalf and stead, to execute and file any
such document, and to do all other lawfully permitted acts to further the
prosecution, issuance, and enforcement of patents, copyrights, or other rights
or protections with the same force and effect as if executed and delivered by
me.
(d) Exclusions. Except as disclosed in Exhibit A, there are no ideas,
processes, trademarks, service marks, inventions, technology, computer programs,
original works of authorship, designs, formulas, discoveries, patents,
copyrights, or improvements to the foregoing that I wish to exclude from the
operation of this Agreement. To the best of my knowledge, there is no existing
contract in conflict with this Agreement or any other contract to assign ideas,
processes, trademarks, service marks, inventions, technology, computer programs,
original works of authorship, designs, formulas, discoveries, patents, or
copyrights that is now in existence between me and any other person or entity.
(e) Pre-existing Material. To the extent that any Invention Ideas
incorporate pre-existing material or any materials disclosed on Exhibit A to
which I possess copyright, trade secret, trademark or other proprietary rights,
and such rights are not otherwise assigned to the Company or its designee
herein, I hereby grant to the Company or its designee a royalty-free,
irrevocable, worldwide, nonexclusive, perpetual license to make, have made,
sell, use and disclose, reproduce, modify, prepare Derivative Works based on,
A-3
distribute, and perform and display (publicly or otherwise), such material, with
full right to authorize others to do so.
With respect to pre-existing material that I provide to the Company or
its designee for use in or with one of its products, and to which I retain
copyright, trade secret, trademark or other proprietary rights not otherwise
assigned to the Company or its designee herein, I hereby grant to the Company or
its designee a royalty-free, irrevocable, worldwide, nonexclusive, perpetual
license to make, have made, sell, use and disclose, reproduce, modify, prepare
Derivative Works based on, distribute, and perform and display (publicly or
otherwise), such material, with full right to authorize others to do so.
"Derivative Work," with respect to material, means any translation,
port, modification, correction, addition, extension, upgrade, improvement,
compilation, abridgement or other form in which the material may be recast,
transformed or adapted, including but not limited to all forms in which such
Derivative Work would infringe any of the copyrights, including audiovisual
copyrights, in the material.
3. Nondispargement. I agree to not make any disparaging comments about
the Companies or their employees to any person or entity, including, without
limitation, any customer, potential customer, investor and potential investor of
any of the Companies, and employees and any representatives of the press and
other media.
4. Former or Conflicting Agreements. During my employment with the
Company, I will not disclose to any of the Companies, or use, or induce any of
the Companies to use, any proprietary information or trade secrets of others. I
represent and warrant that I have returned all property and confidential
information belonging to all prior employers. I further represent and warrant
that my performance of the terms of this Agreement will not breach any agreement
to keep in confidence proprietary information acquired by me in confidence or in
trust prior to my employment by the Company. I have not entered into, and I
agree I will not enter into, any oral or written agreement in conflict herewith.
5. Government Contracts. I understand that any of the Companies has or
may enter into contracts with the government under which certain intellectual
property rights will be required to be protected, assigned, licensed, or
otherwise transferred and I hereby agree to execute such other documents and
agreements as are necessary to enable such Company to meet its obligations under
any such government contracts.
6. Termination. I hereby acknowledge and agree that all personal
property, including, without limitation, all books, manuals, records, models,
drawings, reports, notes, contracts, lists, blueprints, and other documents or
materials or copies thereof, Proprietary Information, and equipment furnished to
or prepared by me in the course of or incident to my employment, belong to the
Company which furnished or for which I prepared such personal property and will
be promptly returned to that Company upon termination of my employment with the
Company. Following my termination, I will not retain any written or other
tangible material containing any Proprietary Information or information
pertaining to any Invention Idea. I understand that my obligations contained
herein will survive the termination of my employment and that I will continue to
make all disclosures required of
A-4
me by paragraph 2(b). In the event of the termination of my employment, I agree
to sign and deliver the Termination Certificate attached as Exhibit B.
7. Remedies. I recognize that nothing in this Agreement is intended to
limit any remedy of any of the Companies under the California Uniform Trade
Secrets Act and that I could face possible criminal and civil actions, resulting
in imprisonment and substantial monetary liability if I misappropriate the trade
secrets of any of the Companies'. In addition, I recognize that my violation of
this Agreement could cause any of the Companies irreparable harm, the amount of
which may be extremely difficult to estimate, thus, making any remedy at law or
in damages inadequate. Therefore, I agree that any of the Companies shall have
the right to apply to any court of competent jurisdiction for an order
restraining any breach or threatened breach of this Agreement and for any other
relief any such Company deems appropriate. This right shall be in addition to
any other remedy available to any of the Companies in law or equity.
8. Miscellaneous Provisions.
(a) Assignment. I agree that any of the Companies may assign to
another person or entity any of its rights under this Agreement.
(b) Governing Law; Severability. The validity, interpretation,
enforceability, and performance of this Agreement shall be governed by and
construed in accordance with the laws of the State of California. If any
provision of this Agreement, or application thereof to any person, place, or
circumstance, shall be held by a court of competent jurisdiction to be invalid,
unenforceable, or void, the remainder of this Agreement and such provisions as
applied to other persons, places, and circumstances shall remain in full force
and effect.
(c) Entire Agreement. The terms of this Agreement are the final
expression of my agreement with respect to the subject matter hereof and may not
be contradicted by evidence of any prior or contemporaneous agreement. This
Agreement shall constitute the complete and exclusive statement of its terms and
no extrinsic evidence whatsoever may be introduced in any judicial,
administrative, or other legal proceeding involving this Agreement.
(d) Successors and Assigns. This Agreement shall be binding upon me
and my heirs, executors, administrators, and successors, and shall inure to the
benefit of any of the Companies' successors and assigns.
(e) Application of this Agreement. I hereby agree that my obligations
set forth in Sections 1 and 2 hereof and the definitions of Proprietary
Information and Invention Ideas contained therein shall be equally applicable to
Proprietary Information and Invention Ideas relating to any work performed by me
for any of the Companies prior to the execution of this Agreement.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE
COMPLETELY NOTED ON EXHIBIT A TO THIS AGREEMENT ANY PROPRIETARY INFORMATION,
IDEAS, PROCESSES, TRADEMARKS, SERVICE MARKS, INVENTIONS, TECHNOLOGY, COMPUTER
PROGRAMS, ORIGINAL WORKS OF AUTHORSHIP, DESIGNS, FORMULAS, DISCOVERIES, PATENTS,
A-5
COPYRIGHTS, OR IMPROVEMENTS, RIGHTS, OR CLAIMS RELATING TO THE FOREGOING THAT I
DESIRE TO EXCLUDE FROM THIS AGREEMENT.
Date: ______________________
Xxxx X. Xxxx
__________________________________
A-6
EXHIBIT A
EMPLOYEE'S DISCLOSURE
1. Proprietary Information. Except as set forth below, I acknowledge
that at this time I know nothing about the business or Proprietary Information
of any of the Companies, other than information I have learned from any of the
Companies in the course of being hired or in the course of my employment by the
Company:
2. Prior Inventions. Except as set forth below, there are no ideas,
processes, trademarks, service marks, inventions, technology, computer programs,
original works of authorship, designs, formulas, discoveries, patents,
copyrights, or any claims, rights, or improvements to the foregoing that I wish
to exclude from the operation of this Agreement:
Date:______________________
Xxxx X. Xxxx
_________________________________
A-7
EXHIBIT B
This page
is for your
TERMINATION CERTIFICATE CONCERNING records
only
TENFOLD CORPORATION
PROPRIETARY INFORMATION AND INVENTIONS
This is to certify that I have returned all personal property of the
Companies, including, without limitation, all books, manuals, records, models,
drawings, reports, notes, contracts, lists, blueprints, and other documents and
materials, Proprietary Information, and equipment furnished to or prepared by me
in the course of or incident to my employment with the Company, and that I did
not make or distribute any copies of the foregoing.
I further certify that I have reviewed the Employee Proprietary
Information and Inventions Agreement signed by me and that I have complied with
and will continue to comply with all of its terms, including, without
limitation, (i) the reporting of any invention, process, or idea, etc. conceived
or developed by me and covered by the Agreement and (ii) the preservation as
confidential of all Proprietary Information pertaining to the Companies. This
certificate in no way limits my responsibilities or the Companies' rights under
the Agreement.
On termination of my employment with the Company, I will be employed by
____ [name of new employer] [in the ______________ division] and I will be
working in connection with the following projects:
[generally describe the projects)
Dated: ____________________
Xxxx X. Xxxx
_____________________________
A-8
EXHIBIT B
INDEMNIFICATION AGREEMENT
TENFOLD CORPORATION
-------------------
INDEMNIFICATION AGREEMENT
-------------------------
This Indemnification Agreement (the "Agreement") is made as of August
---------
1, 2001 by and between TenFold Corporation, a Delaware corporation (the
"Company"), and Xxxx X. Xxxx (the "Indemnitee").
------- ----------
RECITALS
--------
The Company and Indemnitee recognize the increasing difficulty in
obtaining liability insurance for directors, officers and key employees, the
significant increases in the cost of such insurance and the general reductions
in the coverage of such insurance. The Company and Indemnitee further recognize
the substantial increase in corporate litigation in general, subjecting
directors, officers and key employees to expensive litigation risks at the same
time as the availability and coverage of liability insurance has been severely
limited. Indemnitee does not regard the current protection available as adequate
under the present circumstances, and Indemnitee and agents of the Company may
not be willing to continue to serve as agents of the Company without additional
protection. The Company desires to attract and retain the services of highly
qualified individuals, such as Indemnitee, and to indemnify its directors,
officers and key employees so as to provide them with the maximum protection
permitted by law.
AGREEMENT
---------
In consideration of the mutual promises made in this Agreement, and for
other good and valuable consideration, receipt of which is hereby acknowledged,
the Company and Indemnitee hereby agree as follows:
1. Indemnification.
---------------
(a) Third Party Proceedings. The Company shall indemnify
-----------------------
Indemnitee if Indemnitee is or was a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Company) by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Company, or any subsidiary of the
Company, by reason of any action or inaction on the part of Indemnitee while an
officer or director or by reason of the fact that Indemnitee is or was serving
at the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement (if such settlement is approved in advance by the Company, which
approval shall not be unreasonably withheld) actually and reasonably incurred by
Indemnitee in connection with such action, suit or proceeding if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed to be in or
not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe Indemnitee's
-9-
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that Indemnitee did
not act in good faith and in a manner which Indemnitee reasonably believed to be
in or not opposed to the best interests of the Company, or, with respect to any
criminal action or proceeding, that Indemnitee had reasonable cause to believe
that Indemnitee's conduct was unlawful.
(b) Proceedings By or in the Right of the Company. The Company
---------------------------------------------
shall indemnify Indemnitee if Indemnitee was or is a party or is threatened to
be made a party to any threatened, pending or completed action or proceeding by
or in the right of the Company or any subsidiary of the Company to procure a
judgment in its favor by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Company, or any subsidiary of the
Company, by reason of any action or inaction on the part of Indemnitee while an
officer or director or by reason of the fact that Indemnitee is or was serving
at the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees) and, to the fullest extent
permitted by law, amounts paid in settlement (if such settlement is approved in
advance by the Company, which approval shall not be unreasonably withheld), in
each case to the extent actually and reasonably incurred by Indemnitee in
connection with the defense or settlement of such action or suit if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed to be in or
not opposed to the best interests of the Company and its stockholders, except
that no indemnification shall be made in respect of any claim, issue or matter
as to which Indemnitee shall have been finally adjudicated by court order or
judgment to be liable to the Company in the performance of Indemnitee's duty to
the Company and its stockholders unless and only to the extent that the court in
which such action or proceeding is or was pending shall determine upon
application that, in view of all the circumstances of the case, Indemnitee is
fairly and reasonably entitled to indemnity for such expenses which such court
shall deem proper.
(c) Mandatory Payment of Expenses. To the extent that
-----------------------------
Indemnitee has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 1(a) or Section 1(b) or the
defense of any claim, issue or matter therein, Indemnitee shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
Indemnitee in connection therewith.
2. No Employment Rights. Nothing contained in this Agreement is
--------------------
intended to create in Indemnitee any right to continued employment.
3. Expenses; Indemnification Procedure.
-----------------------------------
(a) Advancement of Expenses. The Company shall advance all
-----------------------
expenses incurred by Indemnitee in connection with the investigation, defense,
settlement or appeal of any civil or criminal action, suit or proceeding
referred to in Section l(a) or Section 1(b) hereof (including amounts actually
paid in settlement of any such action, suit or proceeding). Indemnitee hereby
undertakes to repay such amounts advanced only if, and to the extent that, it
shall ultimately be determined that Indemnitee is not entitled to be indemnified
by the Company as authorized hereby. Any advances to be made under this
Agreement shall be paid by the
-10-
Company to Indemnitee within twenty (20) days following delivery of a written
request thereof by Indemnitee to the Company
(b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a
--------------------------------
condition precedent to his or her right to be indemnified under this Agreement,
give the Company notice in writing as soon as practicable of any claim made
against Indemnitee for which indemnification will or could be sought under this
Agreement. Notice to the Company shall be directed to the Chief Executive
Officer of the Company and shall be given in accordance with the provisions of
Section 12(d) below. In addition, Indemnitee shall give the Company such
information and cooperation as it may reasonably require and as shall be within
Indemnitee's power.
(c) Procedure. Any indemnification and advances provided for
---------
in Section 1 and this Section 3 shall be made no later than forty-five (45) days
after receipt of the written request of Indemnitee. If a claim under this
Agreement, under any statute, or under any provision of the Company's
Certificate of Incorporation or Bylaws providing for indemnification, is not
paid in full by the Company within forty-five (45) days after a written request
for payment thereof has first been received by the Company, Indemnitee may, but
need not, at any time thereafter bring an action against the Company to recover
the unpaid amount of the claim and, subject to Section 11 of this Agreement,
Indemnitee shall also be entitled to be paid for the expenses (including
attorneys' fees) of bringing such action. It shall be a defense to any such
action (other than an action brought to enforce a claim for expenses incurred in
connection with any action, suit or proceeding in advance of its final
disposition) that Indemnitee has not met the standards of conduct which make it
permissible under applicable law for the Company to indemnify Indemnitee for the
amount claimed, but the burden of proving such defense shall be on the Company
and Indemnitee shall be entitled to receive interim payments of expenses
pursuant to Section 3(a) unless and until such defense may be finally
adjudicated by court order or judgment from which no further right of appeal
exists. It is the parties' intention that if the Company contests Indemnitee's
right to indemnification, the question of Indemnitee's right to indemnification
shall be for the court to decide, and neither the failure of the Company
(including its Board of Directors, any committee or subgroup of the Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination that indemnification of Indemnitee is proper in the circumstances
because Indemnitee has met the applicable standard of conduct required by
applicable law, nor an actual determination by the Company (including its Board
of Directors, any committee or subgroup of the Board of Directors, independent
legal counsel, or its stockholders) that Indemnitee has not met such applicable
standard of conduct, shall create a presumption that Indemnitee has or has not
met the applicable standard of conduct.
(d) Notice to Insurers. If, at the time of the receipt of a notice
------------------
of a claim pursuant to Section 3(b) hereof, the Company has director and officer
liability insurance in effect, the Company shall give prompt notice of the
commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf
of the Indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of such policies.
(e) Selection of Counsel. In the event the Company shall be
--------------------
obligated under Section 3(a) hereof to pay the expenses of any proceeding
against Indemnitee, the Company, if
-11-
appropriate, shall be entitled to assume the defense of such proceeding, with
counsel approved by Indemnitee, upon the delivery to Indemnitee of written
notice of its election so to do. After delivery of such notice, approval of such
counsel by Indemnitee and the retention of such counsel by the Company, the
Company will not be liable to Indemnitee under this Agreement for any fees of
counsel subsequently incurred by Indemnitee with respect to the same proceeding,
provided that (i) Indemnitee shall have the right to employ counsel in any such
proceeding at Indemnitee's expense; and (ii) if (A) the employment of counsel by
Indemnitee has been previously authorized by the Company, (B) Indemnitee shall
have reasonably concluded that there may be a conflict of interest between the
Company and Indemnitee in the conduct of any such defense or (C) the Company
shall not, in fact, have employed counsel to assume the defense of such
proceeding, then the fees and expenses of Indemnitee's counsel shall be at the
expense of the Company.
4. Additional Indemnification Rights; Nonexclusivity.
-------------------------------------------------
(a) Scope. Notwithstanding any other provision of this Agreement, the
-----
Company hereby agrees to indemnify the Indemnitee to the fullest extent
permitted by law, notwithstanding that such indemnification is not specifically
authorized by the other provisions of this Agreement, the Company's Certificate
of Incorporation, the Company's Bylaws or by statute. In the event of any
change, after the date of this Agreement, in any applicable law, statute, or
rule which expands the right of a Delaware corporation to indemnify a member of
its board of directors or an officer, such changes shall be deemed to be within
the purview of Indemnitee's rights and the Company's obligations under this
Agreement. In the event of any change in any applicable law, statute or rule
which narrows the right of a Delaware corporation to indemnify a member of its
board of directors or an officer, such changes, to the extent not otherwise
required by such law, statute or rule to be applied to this Agreement shall have
no effect on this Agreement or the parties' rights and obligations hereunder.
(b) Nonexclusivity. The indemnification provided by this Agreement
--------------
shall not be deemed exclusive of any rights to which Indemnitee may be
entitled under the Company's Certificate of Incorporation, its Bylaws, any
agreement, any vote of stockholders or disinterested members of the Company's
Board of Directors, the General Corporation Law of the State of Delaware, or
otherwise, both as to action in Indemnitee's official capacity and as to action
in another capacity while holding such office. The indemnification provided
under this Agreement shall continue as to Indemnitee for any action taken or not
taken while serving in an indemnified capacity even though he or she may have
ceased to serve in any such capacity at the time of any action, suit or other
covered proceeding.
5. Partial Indemnification. If Indemnitee is entitled under any
-----------------------
provision of this Agreement to indemnification by the Company for some or a
portion of the expenses, judgments, fines or penalties actually or reasonably
incurred in the investigation, defense, appeal or settlement of any civil or
criminal action, suit or proceeding, but not, however, for the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for the portion of
such expenses, judgments, fines or penalties to which Indemnitee is entitled.
6. Mutual Acknowledgment. Both the Company and Indemnitee
---------------------
acknowledge that in certain instances, Federal law or public policy may override
applicable state law and prohibit
-12-
the Company from indemnifying its directors and officers under this Agreement or
otherwise. For example, the Company and Indemnitee acknowledge that the
Securities and Exchange Commission (the "SEC") has taken the position that
---
indemnification is not permissible for liabilities arising under certain federal
securities laws, and federal legislation prohibits indemnification for certain
ERISA violations. Indemnitee understands and acknowledges that the Company has
undertaken or may be required in the future to undertake with the SEC to submit
the question of indemnification to a court in certain circumstances for a
determination of the Company's right under public policy to indemnify
Indemnitee.
7. Officer and Director Liability Insurance. The Company shall, from time
----------------------------------------
to time, make the good faith determination whether or not it is practicable for
the Company to obtain and maintain a policy or policies of insurance with
reputable insurance companies providing the officers and directors of the
Company with coverage for losses from wrongful acts, or to ensure the Company's
performance of its indemnification obligations under this Agreement. Among other
considerations, the Company will weigh the costs of obtaining such insurance
coverage against the protection afforded by such coverage. In all policies of
director and officer liability insurance, Indemnitee shall be named as an
insured in such a manner as to provide Indemnitee the same rights and benefits
as are accorded to the most favorably insured of the Company's directors, if
Indemnitee is a director; or of the Company's officers, if Indemnitee is not a
director of the Company but is an officer; or of the Company's key employees, if
Indemnitee is not an officer or director but is a key employee. Notwithstanding
the foregoing, the Company shall have no obligation to obtain or maintain such
insurance if the Company determines in good faith that such insurance is not
reasonably available, if the premium costs for such insurance are
disproportionate to the amount of coverage provided, if the coverage provided by
such insurance is limited by exclusions so as to provide an insufficient
benefit, or if Indemnitee is covered by similar insurance maintained by a parent
or subsidiary of the Company.
8. Severability. Nothing in this Agreement is intended to require or
------------
shall be construed as requiring the Company to do or fail to do any act in
violation of applicable law. The Company's inability, pursuant to court order,
to perform its obligations under this Agreement shall not constitute a breach of
this Agreement. The provisions of this Agreement shall be severable as provided
in this Section 8. If this Agreement or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify Indemnitee to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated, and the balance
of this Agreement not so invalidated shall be enforceable in accordance with its
terms.
9. Exceptions. Any other provision herein to the contrary
----------
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance expenses
------------------------------
to Indemnitee with respect to proceedings or claims initiated or brought
voluntarily by Indemnitee and not by way of defense, except with respect to
proceedings brought to establish or enforce a right to indemnification under
this Agreement or any other statute or law or otherwise as required under
Section 145 of the Delaware General Corporation Law, but such indemnification or
advancement of expenses may be provided by the Company in specific cases if the
Board of Directors finds it to be appropriate;
-13-
(b) Lack of Good Faith. To indemnify Indemnitee for any expenses
------------------
incurred by Indemnitee with respect to any proceeding instituted by Indemnitee
to enforce or interpret this Agreement, if a court of competent jurisdiction
determines that each of the material assertions made by Indemnitee in such
proceeding was not made in good faith or was frivolous;
(c) Insured Claims. To indemnify Indemnitee for expenses or
--------------
liabilities of any type whatsoever (including, but not limited to, judgments,
fines, ERISA excise taxes or penalties, and amounts paid in settlement) to the
extent such expenses or liabilities have been paid directly to Indemnitee by an
insurance carrier under a policy of officers' and directors' liability insurance
maintained by the Company; or
(d) Claims under Section 16(b). To indemnify Indemnitee for
--------------------------
expenses or the payment of profits arising from the purchase and sale by
Indemnitee of securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, as amended, or any similar successor statute.
10. Construction of Certain Phrases.
-------------------------------
(a) For purposes of this Agreement, references to the "Company"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that if Indemnitee is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
Indemnitee shall stand in the same position under the provisions of this
Agreement with respect to the resulting or surviving corporation as Indemnitee
would have with respect to such constituent corporation if its separate
existence had continued.
(b) For purposes of this Agreement, references to "other
-----
enterprises" shall include employee benefit plans; references to "fines" shall
----------- -----
include any excise taxes assessed on Indemnitee with respect to an employee
benefit plan; and references to "serving at the request of the Company" shall
-------------------------------------
include any service as a director, officer, employee or agent of the Company
which imposes duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its participants, or
beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan, Indemnitee shall be deemed to have acted in a
manner "not opposed to the best interests of the Company" as referred to in this
------------------------------------------------
Agreement.
11. Attorneys' Fees. In the event that any action is instituted by
---------------
Indemnitee under this Agreement to enforce or interpret any of the terms hereof,
Indemnitee shall be entitled to be paid all court costs and expenses, including
reasonable attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action, the court of competent jurisdiction determines
that each of the material assertions made by Indemnitee as a basis for such
action were not made in good faith or were frivolous. In the event of an action
instituted by or in the name of the Company under this Agreement or to enforce
or interpret any of the terms of this
-14-
Agreement, Indemnitee shall be entitled to be paid all court costs and expenses,
including attorneys' fees, incurred by Indemnitee in defense of such action
(including with respect to Indemnitee's counterclaims and cross-claims made in
such action), unless as a part of such action the court determines that each of
Indemnitee's material defenses to such action were made in bad faith or were
frivolous.
12. Miscellaneous.
-------------
(a) Governing Law. This Agreement and all acts and transactions
-------------
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of
Delaware, without giving effect to principles of conflict of law.
(b) Entire Agreement; Enforcement of Rights. This Agreement sets
---------------------------------------
forth the entire agreement and understanding of the parties relating to the
subject matter herein and merges all prior discussions between them. No
modification of or amendment to this Agreement, nor any waiver of any rights
under this Agreement, shall be effective unless in writing signed by the parties
to this Agreement. The failure by either party to enforce any rights under this
Agreement shall not be construed as a waiver of any rights of such party.
(c) Construction. This Agreement is the result of negotiations
------------
between and has been reviewed by each of the parties hereto and their respective
counsel, if any; accordingly, this Agreement shall be deemed to be the product
of all of the parties hereto, and no ambiguity shall be construed in favor of or
against any one of the parties hereto.
(d) Notices. Any notice, demand or request required or permitted to
-------
be given under this Agreement shall be in writing and shall be deemed sufficient
when delivered personally or sent by telegram or forty-eight (48) hours after
being deposited in the U.S. mail, as certified or registered mail, with postage
prepaid, and addressed to the party to be notified at such party's address as
set forth below or as subsequently modified by written notice.
(e) Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
(f) Successors and Assigns. This Agreement shall be binding upon the
----------------------
Company and its successors and assigns, and inure to the benefit of Indemnitee
and Indemnitee's heirs, legal representatives and assigns.
(g) Subrogation. In the event of payment under this Agreement, the
-----------
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all documents required and shall do
all acts that may be necessary to secure such rights and to enable the Company
to effectively bring suit to enforce such rights.
[Signature Page Follows]
-15-
The parties hereto have executed this Agreement as of the day and year set
forth on the first page of this Agreement.
TenFold Corporation
By: __________________________________
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
Address:
000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxx 00, Xxxxx 000
Xxxxxx, Xxxx 00000
AGREED TO AND ACCEPTED:
XXXX X. XXXX
_____________________________________
(Signature)
Address: ____________________________
____________________________
B-1
