EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT, by and between Xxxxx Xxxxx (the "Executive") and IA
Corporation I, a Delaware corporation (the "Company"), shall become effective
as of July 22, 1998 (the "Effective Date").
In consideration of the mutual covenants herein contained, and in
consideration of the employment of Executive by the Company, the parties agree
as follows:
1. Duties and Scope of Employment.
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(a) Position. The Company agrees to employ the Executive under the
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terms of this Agreement in the position of Chief Executive Officer of the
Company. Executive will report to the Board of Directors of the Company.
(b) Obligations. During the term of this Agreement, the Executive
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shall devote Executive's full business efforts and time to the Company. The
foregoing, however, shall not preclude the Executive from engaging in
appropriate civic, charitable or religious activities or from devoting a
reasonable amount of time to private investments or from serving on the boards
of directors of other entities, as long as such activities and service do not
interfere or conflict with Executive's responsibilities to the Company and do
not represent business conflicts with the Company's business.
(c) Company Policies. Executive shall comply with all of the
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Company's rules, policies and regulations applicable to the employees of the
Company and with all of the Company's policies applicable to other similarly
situated executives established by the Company's management and Board of
Directors.
(d) Director Position. Executive shall be appointed to the Board of
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Directors of the Company promptly following the Effective Date and during the
term of this Agreement shall be nominated by the Company for reelection as a
director at the Annual Meeting of Stockholders each year thereafter. Executive
agrees to resign as a director promptly following any termination of this
Agreement.
2. Base Compensation and Bonus.
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(a) Base Compensation. Beginning on the Effective Date, the Executive
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shall be paid a base salary of $265,000 annually, payable every two weeks (the
"Base Compensation"). The Base Compensation shall be subject to review annually
for increases by the Board of Directors, in its discretion, in connection with
the annual review of salary and benefits for the Company's management.
(b) Annual Performance Bonus. Executive shall be entitled to a
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guaranteed annual performance bonus for Executive's first year of employment
equal to $250,000, payable in quarterly installments of $62,500 on September 30,
1998, January 7, 1999, March 31, 1999 and June 30, 1999. Beginning in 1999 and
for each year thereafter, Executive shall be eligible to receive an annual
performance bonus of up to 100% of Executive's Base Compensation subject to
Executive meeting or exceeding annual goals. The amount of the bonus, the
annual goals and the determination of achievement of the goals shall be made by
the Board of Directors, or a subcommittee thereof in their discretion. Any
bonus for a calendar year shall be payable on January 31 of the subsequent
calendar year. Executive's 1999 annual performance bonus will be prorated for
one-half year.
(c) Allowance. Executive shall be entitled to an allowance of up to
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$7,500 per year for tax and estate planning. Expenses will be reimbursed
Executive by the Company on an as incurred basis.
(d) Employment Condition. Except as otherwise provided herein,
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payment of any bonus or allowance shall be conditioned on Executive's continued
employment through the date of payment.
3. Definitions. As used herein, the following definitions shall apply:
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(a) Cause. "Cause" shall mean the termination of employment of
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Executive shall have taken place as a result of (i) Executive's continued
failure to substantially perform Executive's principal duties and
responsibilities
(other than as a result of Disability or death) after 30 days written notice
from the Company specifying the nature of Executive's failure and demanding that
such failure be remedied; (ii) Executive's material and continuing breach of
Executive's obligations to the Company set forth in this Agreement, the
Confidentiality Agreement (as defined herein), or any written rule, regulation
or policy of the Company applicable to all employees after 30 days written
notice from the Company specifying the nature of Executive's breach and
demanding that such breach be remedied (unless such breach by its nature cannot
be cured, in which case notice and an opportunity to cure shall not be
required); (iii) Executive's being convicted of a felony; or (iv) act or acts of
dishonesty undertaken by Executive and intended to result in substantial gain or
personal enrichment of Executive at the expense of the Company.
(b) Change of Control. "Change of Control" shall mean the occurrence
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of any of the following events:
(i) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended), other than Warburg,
Xxxxxx investors, is or becomes the "beneficial owner" (as defined in Rule 13d-3
under said Act), directly or indirectly, of securities of the Company
representing 50% or more of the total voting power represented by the Company's
then outstanding voting securities; or
(ii) The consummation of (A) a merger or consolidation of the
Company with any other corporation, other than a merger or consolidation which
would result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity or the entity
that controls such surviving entity) at least 50% of the total voting power
represented by the voting securities of the Company or such surviving entity or
the entity that controls such surviving entity outstanding immediately after
such merger or consolidation; or (B) the sale or disposition by the Company of
all or substantially all the Company's assets.
(b) Constructive Termination. "Constructive Termination" shall mean a
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termination of employment due to any of the following, unless agreed to by
Executive in writing: (i) a reduction in Executive's salary or benefits (except
in connection with a decrease to be applied equally to all executives of the
Company because the Company's performance has decreased, and excluding the
substitution of substantially equivalent compensation and benefits); (ii) a
material diminution of Executive's responsibilities (e.g., title, primary
duties, resources); (iii) relocation of Executive by the Company to a location
more than 50 miles from Emeryville, California; or (iv) failure of a successor
to assume and perform under this Agreement.
(c) Disability. "Disability" shall mean that the Executive, at the
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time notice is given, has been unable to perform Executive's duties under this
Agreement for a period of not less than 90 days consecutively as the result of
Executive's incapacity due to physical or mental illness. In the event that the
Executive resumes the performance of substantially all of Executive's duties
hereunder within 90 days of the commencement of leave before the termination of
employment under Section 6(b)(iii) becomes effective, the notice of termination
shall automatically be deemed to have been revoked. This paragraph will be
interpreted in compliance with the Americans with Disabilities Act.
4. Executive Benefits.
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(a) General. Executive shall be entitled to participate in pension
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plans, savings or profit-sharing plans, deferred compensation plans,
supplemental retirement or excess-benefit plans, stock option, incentive or
other bonus plans, life, disability, health, accident and other insurance
programs, paid vacation time off (which will accrue for the Executive at a rate
of 4.62 days per pay period beginning on the Effective Date), a car mileage
allowance for business mileage and similar plans or programs made available to
employees of the Company, subject in each case to the generally applicable terms
and conditions of the plan or program and the decision of the Board of Directors
or administrators of such plan.
(b) Business Expenses and Travel. During the term of Executive's
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employment under this Agreement, Executive shall be authorized to incur
necessary and reasonable travel, entertainment and other business expenses in
connection with Executive's duties hereunder. The Company shall reimburse
Executive for such expenses upon presentation of an itemized account and
appropriate supporting documentation, all in accordance with the Company's
generally applicable policies.
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(c) Stock Awards. The Executive shall be granted stock options (the
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"Options") to purchase 530,000 shares of Common Stock of the Company at an
exercise price of the closing price of the Common Stock as quoted on the NASDQ
National Market System as of three business days following the issuance of the
press release announcing Executive as Chief Executive Officer of the Company.
The Options will be granted pursuant to the Company's standard form of stock
option agreements. The Options shall be designated as incentive stock options
under the Internal Revenue Code (the "Code") to the maximum extent possible
under the Code. The Options shall be exercisable as to 132,500 shares, 12
months following the Effective Date, and an additional 11,042 shares at the end
of each additional one-month period after the Effective Date such that all
530,000 shares will be exercisable on the date four years after the Effective
Date. The Options shall have a term of ten years. Executive will be eligible
to receive additional stock option grants at the discretion of the Company's
Board of Directors. Such additional grants will be based on performance, and
will be reviewed annually by the Board of Directors.
5. Acceleration After Change of Control.
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(a) First Year Guaranteed Annual Performance Bonus. The payment of
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the of Executive's first year guaranteed annual performance bonus shall be
accelerated and paid in full in the event of a Change of Control and provided
Executive has not been offered the job of Chief Executive Officer of the
combined entity that includes the Company after such Change of Control (the
"Combined Entity").
(b) Options. The exercisability of the Options shall be accelerated as
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follows:
(i) Change of Control During First Year. In the event of a
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Change of Control during Executive's first two years of employment with the
Company, and provided Executive has not been offered the job of Chief Executive
Officer of the Combined Entity, exercise of the Options shall be accelerated so
that 50% of the Options are exercisable.
(ii) Change of Control After Year Two. In the event of a Change
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of Control after Executive's second year of employment with the Company, and
provided Executive has not been offered the job of Chief Executive Officer of
the Combined Entity, the exercise of the Options shall be accelerated so that
100% of the Options are exercisable.
6. Term of Employment.
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(a) Basic Rule. The Company agrees to continue Executive's
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employment, and Executive agrees to remain in the employ of the Company,
pursuant to the provisions of this Agreement. Executive's employment is and
shall be "at will".
(b) Termination by the Company. The Company may terminate Executive's
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employment at any time, for any reason or no reason, with 30 days advance notice
in writing.
(i) Termination Without Cause. If the Company terminates
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Executive's employment during the term of this Agreement for any reason
whatsoever, including a Constructive Termination, and other than voluntary
termination of employment or Termination for Cause, the provisions of Section
7(a) shall apply.
(ii) Termination for Cause. If the Company terminates
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Executive's employment for Cause during the term of this Agreement, the
provisions of Section 7(b) shall apply.
(iii) Termination on Death or Disability. If Executive's
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employment terminates as a result of Executive's death or the Company terminates
Executive's employment as a result of Disability, the provisions of Section 7(c)
shall apply.
(c) Voluntary Termination by the Executive. The Executive may
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terminate Executive's employment voluntarily by giving the Company 30 days
advance notice in writing, at which time the provisions of Section 7(b) shall
apply. However, if the Executive terminates Executive's employment pursuant to
this Section 6(c) as a result of the occurrence of any of the events set forth
in the definition of a Constructive Termination, the provisions of Section 7(a)
shall
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apply, provided the Executive has provided written notice to the Company
reasonably specifying the reasons why one of such events in the definition of a
Constructive Termination has occurred and the Company has not cured such event
within 20 days after receipt of such notice.
(d) Waiver of Notice. Any waiver of notice shall be valid only if it
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is made in writing and expressly refers to the applicable notice requirement in
this Section 6.
7. Payments Upon Termination of Employment.
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(a) Payments Upon Termination Pursuant to Section 6(b)(i) and
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Constructive Termination. If, during the term of this Agreement, the
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Executive's employment is terminated by the Company pursuant to Section 6(b)(i)
or voluntarily by the Executive under Section 6(c) as a result of a Constructive
Termination, the Executive shall be entitled to receive the following:
(i) Severance Payment. In lieu of any payments under the
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Company's severance plan, the Company shall continue to pay to the Executive his
Base Compensation (the "Severance Payment") for up to 12 months following the
termination date (the "Severance Period"). The duration of the Severance Period
will be determined by the Company's Board of Directors, but in no event will the
Severance Payment be less than that amount Executive would have otherwise have
been entitled to under the Company's severance plan. The Base Compensation
amount shall be determined with reference to the Base Compensation in effect for
the month in which the date of employment termination occurs.
(ii) Stock Options. Except as otherwise provided in Section 5,
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Executive shall have 90 days from the date of termination of employment in which
to exercise any Options, to the extent such Options are exercisable as of the
termination date.
(iii) Method of Payment. The Severance Payment shall be made
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every two weeks during the Severance Period. In the event Executive accepts
other full-time employment during the Severance Period, Executive will notify
the Company of such employment and the Company will pay Executive an amount
equal to the unpaid portion of the Severance Payment.
(iv) Health and Welfare Benefits. The Company shall continue to
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provide health and welfare benefits for the duration of the Severance Period.
Such benefits will be discontinued to the extent that Executive receives similar
benefits in connection with new employment. Executive will also be entitled to
such payments and benefits as may be provided under applicable benefit plans and
programs of the Company.
(v) Payment in Lieu of Contract Damages. The Severance Payment
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shall be in lieu of any further payments to the Executive and any further
accrual of benefits with respect to periods subsequent to the date of the
employment termination.
(vi) No Duty to Mitigate. The Executive shall not be required to
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mitigate the amount of any payment contemplated by this Section 7(a) (whether by
seeking new employment or in any other manner).
(vii) Termination In Year One of Employment. In addition to the
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foregoing, if Executive's termination occurs during Executive's first year of
employment with the Company, Executive will be entitled to an amount equal to
the unpaid balance of Executive's (A)Base Compensation for year one of
employment and (B) $250,000 guaranteed annual performance bonus for year one of
employment.
(b) Termination By Company for Cause or Voluntary Termination. If the
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Executive's employment is terminated pursuant to Section 6(b)(ii) or voluntarily
(other than a Constructive Termination) pursuant to Section 6(c), no
compensation or payments will be paid or provided to Executive for the periods
following the date when such a termination of employment is effective.
Notwithstanding the preceding sentence, Executive's rights under the benefit
plans and any stock option plans of the Company shall be determined under the
provisions of the applicable benefit plans and stock option plans and related
agreements under which Options were granted, provided Executive shall have 90
days from the date
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of termination of employment in which to exercise the Options to the extent such
Options are exercisable as of the termination date.
(c) Termination on Death or Disability. If Executive's employment is
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terminated because of Executive's death or Disability, then no compensation
payments will be paid or provided to Executive or Executive's estate for periods
following the date of such termination under this Agreement and Executive shall
receive severance and disability payments as provided in the Company's standard
benefit plans. Executive's Options shall be exercisable as provided in such
agreements in each case to the extent such Options are exercisable as of the
date of termination.
(d) Adjustment Upon Change of Control For Excise Tax. Notwithstanding
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any other provision of this Agreement, if a termination of employment occurs and
as a result Executive is subject to any Federal excise tax imposed pursuant to
Section 4999 of the Internal Revenue Code (or any successor provision),
Executive's Severance Payment shall be reduced to the extent necessary if
Executive would receive a greater after tax benefit as a result of any such
reduction than if Executive receives full payment of the Severance Payment.
8. Inventions and Proprietary Information. The Executive agrees to
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comply fully with the Company's policies relating to invention and non-
disclosure of the Company's trade secrets and proprietary information and
processes, as set out in Exhibit A hereto (the "Confidentiality Agreement").
9. Successors.
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(a) Company's Successors. Any successor to the Company (whether
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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 this Agreement and agree expressly to perform this
Agreement in the same manner and to the same extent as the Company would be
required to perform it in the absence of a succession. For all purposes under
this Agreement, the term "Company" shall include any successor to the Company's
business and/or assets which executes and delivers the assumption agreement
described in this subsection (a) or which becomes bound by this Agreement by
operation of law.
(b) Executive's Successors. This Agreement and all rights of the
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Executive hereunder shall inure to the benefit of, and be enforceable by,
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
10. Notice. Notices and all other communications contemplated by this
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Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered; upon delivery when sent by over night courier; or five
days after being mailed by first class mail, return receipt requested and
postage prepaid. In the case of the Executive, mailed notices shall be
addressed to Executive at the home address which Executive most recently
communicated to the Company in writing. In the case of the Company, mailed
notices shall be addressed to its corporate headquarters, and all notices shall
be directed to the attention of its Chief Financial Officer.
11. Non-Competition. During the term of this Agreement and for one year
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following the termination of this Agreement (the "Non-Competition Period"),
Executive shall not maintain or enter into any employment position or consulting
relationship with a "Direct Competitor" of the Company, which is generally
defined as the business unit, division, subsidiary or individual that offers or
sells products or services substantially similar to those offered or sold by the
Company ("Competitive Products") during the term of this Agreement. Direct
Competitor shall not generally include affiliates, business units, divisions or
subsidiaries of any Direct Competitor that do not offer or sell Competitive
Products. The classification of any entity as a Direct Competitor shall be at
the Company's reasonable discretion. In the event during the Non-Competition
Period Executive breaches this Section 11, Executive agrees that all obligations
of the Company to make the Severance Payment, shall immediately terminate and
Executive shall repay to the Company an amount equal to the after tax proceeds
to Executive of any Severance Payments paid to date.
12. Solicitation of Employees. Executive agrees that for a period of 12
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months immediately following the termination of Executive's employment with the
Company, Executive shall not either directly or indirectly solicit, induce,
recruit, or encourage any of the Company's employees to leave their employment,
or take away such employees, or attempt
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to solicit, induce, recruit, encourage or take away employees of the Company,
either for Executive or for any other person or entity.
13. Miscellaneous Provisions.
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(a) Waiver. No provision of this Agreement shall be modified, waived
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or discharged unless the modification, waiver or discharge is agreed to in
writing and signed by the Executive and an officer or a director of the Company
authorized by the Board of Directors. No waiver by either party of any breach
of, or of compliance with, any condition or provision of this Agreement by the
other party shall be considered a waiver of any other condition or provision or
of the same condition or provision at another time.
(b) Whole Agreement. No agreements, representations or understandings
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(whether oral or written and whether express or implied) which are not expressly
set forth in this Agreement have been made or entered into by either party with
respect to the subject matter hereof. This Agreement supersedes and replaces any
and all previous agreements between the Executive and the Company regarding
compensation or terms of employment.
(c) Choice of Law. The validity, interpretation, construction and
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performance of this Agreement shall be governed by the laws of the State of
California.
(d) Severability. The invalidity or unenforceability of any provision
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or provisions of this Agreement shall not affect the validity or enforceability
of any other provision hereof, which shall remain in full force and effect.
(e) Arbitration. With the exception of the equitable relief provided
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for in Exhibit A, any dispute or controversy arising under or in connection with
this Agreement shall be settled exclusively by arbitration in San Francisco,
California, in accordance with the rules of the American Arbitration Association
then in effect. Judgment may be entered on the arbitrator's award in any court
having jurisdiction.
(f) No Assignment of Benefits. The rights of any person to payments
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or benefits under this Agreement shall not be made subject to option or
assignment, either by voluntary or involuntary assignment or by operation of
law, including (without limitation) bankruptcy, garnishment, attachment or other
creditor's process, and any action in violation of this subsection (f) shall be
void.
(g) Limitation of Remedies. If the Executive's employment terminates
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for any reason, the Executive shall not be entitled to any payments, benefits,
damages, awards or compensation other than as provided by this Agreement.
(h) Employment Taxes. All payments made pursuant to this Agreement
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will be subject to withholding of applicable taxes.
(i) Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
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Page 6
(j) Representation by Counsel. Executive represents that Executive
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has had the opportunity to seek and has been represented by independent legal
counsel in connection with entering into the Agreement.
IN WITNESS WHEREOF, each of the parties has executed this Agreement,
in the case of the Company by its duly authorized officer.
IA Corporation I
/s/ C.V. Ravi /s/ Xxxxx X. Xxxxx
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Executive's Signature
Chairman 000 Xxxxxx Xxxx
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Title Address
July 10, 0000 Xxx Xxxxx, XX 00000
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Date City, State, Zip
(000) 000-0000
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Telephone
###-##-####
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Social Security #
July 10, 1998
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Date
Page 7
EXHIBIT A
CONFIDENTIAL INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
1. Confidential Information.
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(a) Company Information. I agree at all times during the term of my
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employment and thereafter, to hold in strictest confidence, and not to use,
except for the benefit of the Company, or to disclose to any person, firm or
corporation without written authorization of the Board of Directors of the
Company, any Confidential Information of the Company. I understand that
"Confidential Information" means any Company proprietary information, technical
data, trade secrets or know-how, including, but not limited to, research,
product plans, products, services, customer lists and customers (including, but
not limited to, customers of the Company on whom I called or with whom I became
acquainted during the term of my employment), markets, software, developments,
inventions, processes, formulas, technology, designs, drawings, engineering,
hardware configuration information, marketing, finances or other business
information disclosed to me by the Company either directly or indirectly in
writing, orally or by drawings or observation of parts or equipment. I further
understand that Confidential Information does not include any of the foregoing
items which has become publicly known and made generally available through no
wrongful act of mine or of others who were under confidentiality obligations as
to the item or items involved.
(b) Former Employer Information. I agree that I will not, during my
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employment with the Company, improperly use or disclose any proprietary
information or trade secrets of any former or concurrent employer or other
person or entity and that I will not bring onto the premises of the Company any
unpublished document or proprietary information belonging to any such employer,
person or entity unless consented to in writing by such employer, person or
entity.
(c) Third Party Information. I recognize that the Company has
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received and in the future will receive from third parties (which includes, but
is not limited to customers of the Company) their confidential or proprietary
information subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. I agree to hold all such confidential or proprietary information in
the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out my work for the
Company consistent with the Company's agreement with such third party.
2. Inventions.
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(a) Inventions Retained and Licensed. I have attached hereto, as
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Attachment 1, a list describing all inventions, original works of authorship,
developments, improvements, and trade secrets which were made by me prior to my
employment with the Company (collectively referred to as "Prior Inventions"),
which belong to me, which relate to the Company's proposed business, products or
research and development, and which are not assigned to the Company hereunder;
or, if no such list is attached, I represent that there are no such Prior
Inventions.
(b) Assignment of Inventions. I agree that I will promptly make full
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written disclosure to the Company, will hold in trust for the sole right and
benefit of the Company, and hereby assign to the Company, or its designee, all
my right, title, and interest in and to any and all inventions, original works
of authorship, developments, concepts, improvements or trade secrets, whether or
not patentable or registrable under copyright or similar laws, which I may
solely or jointly conceive or develop or reduce to practice, or cause to be
conceived or developed or reduced to practice, during the period of time I am in
the employ of the Company (collectively referred to as "Inventions"), except as
provided in Section 3(f) below. I further acknowledge that all original works
of authorship which are made by me (solely or jointly with others) within the
scope of and during the period of my employment with the Company and which are
protectible by copyright are "works made for hire," as that term is defined in
the United States Copyright Act.
(c) Inventions Assigned to the United States. I agree to assign to
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the United States government all my right, title, and interest in and to any and
all Inventions whenever such full title is required to be in the United States
by a contract between the Company and the United States or any of its agencies.
(d) Maintenance of Records. I agree to keep and maintain adequate and
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current written records of all Inventions made by me (solely or jointly with
others) during the term of my employment with the Company. The records will be
in the form of notes, sketches, drawings, and any other format that may be
specified by the Company. The records will be available to and remain the sole
property of the Company at all times.
(e) Patent and Copyright Registrations. I agree to assist the
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Company, or its designee, at the Company's expense, in every proper way to
secure the Company's rights in the Inventions and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto in any and
all countries, including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all applications,
specifications, oaths, assignments and all other instruments which the Company
shall deem necessary in order to apply for and obtain such rights and in order
to assign and convey to the Company, its successors, assigns, and nominees the
sole and exclusive rights, title and interest in and to such Inventions, and any
copyrights, patents, mask work rights or other intellectual property rights
relating thereto. I further agree that my obligation to execute or cause to be
executed, when it is in my power to do so, any such instrument or papers shall
continue after the termination of this Agreement. If the Company is unable
because of my mental or physical incapacity or for any other reason to secure my
signature to apply for or to pursue any application for any United States or
foreign patents or copyright registrations covering Inventions or original works
of authorship assigned to the Company as above, then I hereby irrevocably
designate and appoint the Company and 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 applications and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent or copyright
registrations thereon with the same legal force and effect as if executed by me.
(f) Exception to Assignments. I understand that the provisions of
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this Agreement requiring assignment of Inventions to the Company do not apply to
any invention which qualifies fully under the provisions of California Labor
Code Section 2870 (attached hereto as Attachment 2). I will advise the Company
promptly in writing of any inventions that I believe meet the criteria in
California Labor Code Section 2870 and not otherwise disclosed on Attachment 1.
3. Returning Company Documents. I agree that, at the time of leaving the
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employ of the Company, I will deliver to the Company (and will not keep in my
possession, recreate or deliver to anyone else) any and all devices, records,
data, notes, reports, proposals, lists, correspondence, specifications, drawings
blueprints, sketches, materials, equipment, other documents or property, or
reproductions of any aforementioned items developed by me pursuant to my
employment with the Company or otherwise belonging to the Company, its
successors or assigns. In the event of the termination of my employment, I
agree to sign and deliver the "Termination Certification" attached hereto as
Attachment 3.
4. Notification of New Employer. In the event that I leave the employ of
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the Company, I hereby grant consent to notification by the Company to my new
employer about my rights and obligations under this Agreement.
5. Equitable Relief. I agree that it would be impossible or inadequate
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to measure and calculate the Company's damages from any breach of the covenants
set forth in Sections 1, 2, and 3 herein. Accordingly, I agree that if I breach
any of such Sections, the Company will have available, in addition to any other
right or remedy available in arbitration, the right to obtain an injunction from
a court of competent jurisdiction restraining such breach or threatened breach
and to specific performance of any such provision of this Agreement. I further
agree that no bond or other security shall be required in obtaining such
equitable relief and I hereby consent to the issuance of such injunction and to
the ordering of specific performance.
ATTACHMENT 1
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LIST OF PRIOR INVENTIONS
AND ORIGINAL WORKS OF AUTHORSHIP
Identifying Number
Title Date or Brief Description
----- ---- --------------------
[X] No inventions or improvements
[_] Additional Sheets Attached
Signature of Employee: /s/ Xxxxx X. Xxxxx
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Print Name of Employee: Xxxxx X. Xxxxx
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Date: July 10, 1998
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ATTACHMENT 2
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CALIFORNIA LABOR CODE SECTION 2870
EMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS
"(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."
ATTACHMENT 3
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TERMINATION CERTIFICATION
This is to certify that I do not have in my possession, nor have I failed
to return, any devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, materials,
equipment, other documents or property, or reproductions of any aforementioned
items belonging to IA Corporation I, its subsidiaries, affiliates, successors or
assigns (together, the "Company").
I further certify that I have complied with all the terms of the Company's
Employment Confidential Information and Invention Assignment Agreement signed by
me, including the reporting of any inventions and original works of authorship
(as defined therein), conceived or made by me (solely or jointly with others)
covered by that agreement.
I further agree that, in compliance with the Confidentiality Agreement, I
will preserve as confidential all trade secrets, confidential knowledge, data or
other proprietary information relating to products, processes, know-how,
designs, formulas, developmental or experimental work, computer programs, data
bases, other original works of authorship, customer lists, business plans,
financial information or other subject matter pertaining to any business of the
Company or any of its employees, clients, consultants or licensees.
Date: ___________________
/s/ Xxxxx X. Xxxxx
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(Executive's Signature)
Xxxxx X. Xxxxx
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(Type/Print Executive's Name)
