Exhibit 10.48
ASSET PURCHASE AGREEMENT
This Agreement is dated as of September 30th, 1999 (the "Effective Date") and
made between Object Design, Inc., located at 00 Xxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000, X.X.X. ("ODI"), and Transformis LLC, located at 000
Xxxxxxxxxxxxx Xxxxxx, Xxxxxx 000, Xxxxxxxxx, Xxxxxxxxxxxxx 00000
("Transformis").
WHEREAS,
A. Transformis owns and operates a business of developing, marketing,
selling, licensing, and maintaining software and providing related
services (the "Business") ; and
B. Transformis has agreed to sell and ODI has agreed to purchase on the
terms and conditions of this Agreement and with effect from the Closing
Date (as hereinafter defined) certain Assets of the Business;
C. Transformis expects to terminate its employment or engagement of Xxxx
Xxxxxxxx, Xxxx Xxxxx and Xxxx Xxxxx, and ODI desires to hire or retain
such individuals, all upon the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants, representations,
warranties, and payments hereinafter set forth, and upon the terms and
conditions of this Agreement the parties agree as follows:
ARTICLE 1 - DEFINITIONS
In this Agreement and the Exhibits attached hereto, the following definitions
shall apply:
1.1 "Assets" means the Software and Contracts.
1.2 "Closing" means the completion of the transfer and the consummation of
the transactions contained in this Agreement. Notwithstanding the
foregoing, for accounting purposes, the effective date of purchase
hereunder shall be the Effective Date of this Agreement.
1.3 "Closing Date" means October 5, 1999.
1.4 "Contracts" means all contracts, agreements, licenses, and other
commitments and arrangements, oral or written, with any person or
entity respecting the ownership, license, acquisition, design,
development, assignment, distribution, marketing, use, or maintenance
of the Software, and related technical or user documentation, including
without limitation development contracts, work-for-hire agreements,
consulting and employment agreements, distribution agreements, licenses
and sublicenses to others, maintenance, support, or enhancement
agreements, and specifically including but not limited to the contracts
listed in Exhibit A and, subject to Clause 2.2(a), Exhibit F.
1.5 "Dollars" and the sign "US$" means the currency of the United States of
America.
1.6 "Intellectual Property" means all right, title and interest of
Transformis to any and all trademarks, trade names, brands, logos and
business names and any and all formulae, know-how, trade secrets,
specifications, designs, patents, copyrights (including registrations,
licenses, and applications pertaining thereto) and any other
proprietary rights owned or held by Transformis in relation to the
Software and Assets, including without limitation the intellectual
property rights set forth in Exhibit G hereto.
1.7 "Purchase Consideration" means the consideration set forth in Clause
3.1.
1.8 "Software" means all software owned by or licensed to Transformis, or
in which Transformis has any other interest, including but not limited
to the software listed in Exhibit A and the Intellectual Property
therein, and the source code, object code, firmware, and any and all
operating manuals and other documentation relating to such software and
the acquisition, design, development, use and/or maintenance of such
software, and all inventories, along with any and all utilized media,
thereto.
ARTICLE 2 - PURCHASE AND RELATED MATTERS
2.1 Subject to the terms of this Agreement (including but not limited to
Clause 2.3(b)), at the Closing, which is to be held on the Closing
Date, Transformis shall sell, transfer, assign, convey, and deliver to
ODI as beneficial and legal owner and ODI shall acquire from
Transformis in reliance on the representations and warranties contained
in Clause 6.1, and the other provisions of this Agreement, the items
set forth below, whether tangible or intangible, free from all liens,
charges and encumbrances and together with all rights, title and
interests now or hereafter attaching thereto:
2.1.1 the Assets;
2.1.2 all causes of action, claims and similar rights, whether
accrued or not, relating to the ownership, title and interest
in the Assets including but not limited to the right to bring
an action for any infringement of any copyright in the Assets
which occurred prior to the Closing;
2.1.3 All accounts receivable, including but not limited to all
license fees and maintenance fees and charges owing or to
become owing to Transformis under the Contracts.
To the extent any rights or assets of Transformis primarily relate to
the Software or are otherwise necessary for the ownership and use of
the Assets, but are not properly itemized or do not appear on the
applicable Schedules hereto where required, then, unless this Agreement
otherwise provides directly for ODI to provide for or obtain such
rights or assets in a different way, such rights and assets shall
nonetheless be deemed transferred to ODI at Closing pursuant to this
Clause 2.1. It is mutually acknowledged that the Schedules hereto are
to be prepared as of the Effective Date, and consequently the Assets so
identified may vary on the Closing Date because of the effect of the
ongoing operations of Transformis.
2.2 ODI shall not at any time (whether prior to or after the Closing)
assume or be liable or responsible for, and Transformis shall at all
times (both prior to and after the Closing) be and remain solely liable
and responsible for, any liabilities and obligations relating to
Transformis, its business and the Assets, including without limitation
the following:
a) Any obligations under any of the Contracts or other agreements
with licensees of the Software and other customers of
Transformis, including but not limited to licensing, warranty
and maintenance, until such time, if any, as the licensee or
customer thereunder shall have signed a contract with ODI to
license the Software; provided that Transformis shall retain
all right, title and interest under and to the each of the
Contracts listed in Exhibit F until such time, if any, as the
licensee or customer thereunder shall have signed a contract
with ODI to license the Software, at which time all such
right, title and interest shall be deemed to transferred to
ODI pursuant to clause 2.1.
b) Any liability or obligation of Transformis of any kind, known
or unknown, contingent or otherwise, not either enumerated as
an assumed liability hereunder or resulting from any express
covenant, agreement, or indemnity of ODI in this Agreement or
the other agreements and instruments to be executed and
delivered by ODI in connection with this Agreement.
c) Any liability or obligation of Transformis for federal, state,
or local income, franchise, property, sales or use (to the
extent arising from pre-Closing transactions), recapture or
other taxes, assessments, and penalties, whether arising out
of the transactions contemplated by this Agreement or
otherwise.
d) Any liability or obligation resulting from violations of any
applicable laws or regulations by Transformis prior to the
Closing Date or infringement of third-party rights or
interests.
e) Any employee liabilities relating to present, past or future
employees of Transformis with respect to plans, programs,
policies, commitments, and other benefit entitlements
established or existing on, prior to or after the Closing Date
(whether or not such liabilities are accrued or payable at
Closing, and whether or not such liabilities are contingent in
nature), including but not limited to:
1. Any liability or obligation for workers' compensation
2. Any current or future liabilities to employees
retiring on, before, or after Closing, and their
dependents.
3. Any current or future liabilities for benefits that
may have been accrued or earned by any employees
associated with Transformis on, before or after
Closing under any pension plans relating to service
prior to or after Closing.
4. Any current or future liabilities for claims incurred
prior to or after Closing and related expenses with
respect to any employees associated with Transformis
under any welfare or disability plans established or
existing at, prior to or after Closing, regardless of
when filed with ODI, Transformis, or the claims
administrator for any such plan.
5. Any retrospective premium on pension, savings,
thrift, or profit-sharing plan contributions relating
to any employees associated with Transformis incurred
or accrued prior to or after Closing, regardless of
when invoiced or recorded.
6. Any monetary liability for severance payments that
have arisen or may arise at any time in favor of any
of Transformis' employees under any plan, program,
policy, commitment, or other benefit entitlement.
f) Any liability or obligation for product liability or warranty
claims or damage claims arising out of defects in or failures
of any product, program, or material of Transformis provided,
distributed, licensed, or delivered prior to the Closing Date.
g) Any litigation pending or threatened against Transformis or
the Assets as of the Closing Date.
2.3 ODI hereby assumes and releases Transformis from all obligations
relating to the Assets to customers who have signed a license agreement
with ODI to license the Software.
ARTICLE 3 - PURCHASE CONSIDERATION AND PAYMENT
3.1 The purchase consideration paid or to be paid by ODI to Transformis for
the purchase of the Assets and all related copyrights shall be as
follows:
3.1.1 The amount of one million Dollars (US$1,000,000).
3.2 The amount in Clause 3.1.1 above shall be paid upon the Closing.
3.3 It is acknowledged by the parties that the purchase consideration for
the sale of the Assets and the transactions hereunder, and the
calculations concerning the total amount of cash payment due
Transformis hereunder, were arrived at by an arms length negotiation,
appropriately reflect the fair market value of the purchased Assets,
will be binding on the parties for tax purposes in connection with the
transaction hereunder and will be consistently reflected by the parties
in their respective tax returns. In this regard, the parties will as
soon as practicable, but in any event within thirty (30) days after the
Closing, agree in writing on an allocation of the purchase
consideration among the Assets.
3.4 All payments from one party to another under this Agreement shall be
made by wire transfer of immediately available federal funds in Dollars
to an account designated in writing by the party to receive such
payment.
ARTICLE 4 - CLOSING AND CONDITIONS
4.1 Except as otherwise expressly provided herein, full title to, and
possession of, the Assets shall be transferred from Transformis to ODI
and/or its nominee at the Closing.
4.2 The obligation of ODI to consummate the transactions contemplated
hereby is subject to the satisfaction at or prior to the Closing of the
following conditions:
4.2.1 There shall be no breach by Transformis of any of its
covenants herein to be performed in whole or part at or prior
to the Closing and the representations and warranties of
Transformis contained herein shall be true and correct in all
material respects as of the Closing, and Transformis shall
have delivered to ODI a certificate of [Xxxx Xxxxxxxx] to such
effect; and
4.2.2 ODI and its accountants and attorneys shall have conducted a
diligence investigation of all matters related to Transformis'
Business and Assets deemed relevant by ODI or such accountants
or attorneys to such diligence investigation, and the results
of such diligence investigation shall have been satisfactory
to ODI.
4.2.3 Transformis shall have delivered to ODI all of the following
items:
(a) Possession of the Assets shall, as far as practical, have
been given to ODI, including possession of all copies of
the Software, the original (or copy if the original is not
available) of each of the Contracts which Transformis
holds in its possession and any relevant documents of
title to the Assets and the Intellectual Property of such
Assets, including but not limited to any documentation
evidencing the transfer of ownership in the Intellectual
Property of the Software from Transformis to ODI which is
registered with the U.S. Patent and Trademark Office or
any other government agency; and
(b) A xxxx of sale evidencing the transfer of the Assets and
the other property and assets provided for in this
Agreement, in form and substance satisfactory to ODI; and
(c) An original Novation Consent (in the form attached hereto
as Exhibit B and as appropriate to be stamped and
registered if required) with respect to each of the
Contracts listed on Exhibit A executed by the appropriate
party, Transformis, and ODI; and
(d) An employment and non-competition agreement executed by
Xxxx Xxxxxxxx substantially in the form attached hereto as
Exhibit C; and
(e) An employment and non-competition agreement executed by
Xxxx Xxxxx substantially in the form attached hereto as
Exhibit D; and
(f) An employment and non-competition agreement executed by
Xxxx Xxxxx substantially in the form attached hereto as
Exhibit E; and
(g) Such consents, assurances, transfers and other documents
or actions as may be necessary or as ODI may reasonably
require to vest in ODI good and marketable title to,
ownership of and the full benefit of the Assets, including
but not limited to any required consents and other items;
and
(h) All the books, records and documents of Transformis
pertaining to the Assets as ODI reasonably requests;
provided, however, that if Transformis is required by law
or regulation to keep the originals of any such books,
records and documents, it may deliver copies thereof to
ODI; and
(i) All consents, assignments, and/or estoppel certificates in
such form, from such third parties, and with respect to
such Assets to be assigned to ODI at Closing as ODI may
specify on or before Closing; and
(j) True and complete copies of the limited liability company
agreement and any other constitutional documents of
Transformis, certified as such by the secretary, or other
equivalent officer of Transformis; and
(k) A certificate of good standing and a certificate of
formation or existence (or equivalent documentation) as of
the Closing Date or a reasonably recent date before the
Closing Date from the jurisdiction of organization of
Transformis; and
(l) Such other assurances, certificates, documents, consents
or legal opinions as ODI may reasonably require in
connection with the transactions contemplated hereby.
4.3 The obligation of Transformis to consummate the transaction
contemplated hereby is subject to the satisfaction at or prior to the
Closing of the following conditions:
4.3.1 There shall be no breach by ODI of any of its covenants herein
to be performed in whole or part at or prior to the Closing
and the representations and warranties of ODI contained herein
shall be true and correct in all material respects as of the
Closing; and
4.3.2 ODI shall have delivered all of the following items:
(a) To Transformis, the cash consideration specified in
Clauses 3.1.1; and
(b) To Xxxx Xxxxxxxx, an employment and non-competition
agreement with him executed by ODI substantially in the
form attached hereto as Exhibit C; and
(c) To Xxxx Xxxxx, an employment and non-competition
agreement with him executed by ODI substantially in the
form attached hereto as Exhibit D; and
(d) To Xxxx Xxxxx, an employment and non-competition
agreement with him executed by ODI substantially in the
form attached hereto as Exhibit E.
(e) To each of Messrs. Xxxxxxxx, Xxxxx and Xxxxx, a xxxxx of
the respective options, set forth in the foregoing
employment and non-competition agreements, effective
upon the start date of employment with ODI.
4.4 Subject to Clause 4.2, the Closing of the purchase and sale provided
for herein shall take place on the Closing Date in a location in
Massachusetts, U.S.A. to be mutually agreed by the parties.
4.5 If any of the conditions of Closing set forth in sections 4.1, 4.2, and
4.3 are not satisfied by the Closing Date, the non-breaching party may
at its option:
4.5.1 defer the Closing to a date not more than thirty (30) days
after the Closing Date (and so that the provisions of this
Clause 4.5 shall apply to the Closing as deferred)
4.5.2 proceed to Closing so far as practicable (without prejudice to
its rights hereunder) or
4.5.3 terminate this Agreement.
4.6 Transformis shall pay all sales, use and other transfer taxes of any
kind and nature including without limitation, all stamp duty that
arises in connection with this Agreement and any other transaction
contemplated by it ("Taxes").
ARTICLE 5 - POST CLOSING ACTIONS AND COVENANTS
ODI and Transformis shall perform the following actions and covenants following
the Closing:
5.1 Transformis shall grant to ODI the right to prosecute or otherwise
enforce in Transformis' name for the benefit of ODI any claims, rights,
or benefits that are transferred to ODI by this Agreement but require
prosecution or enforcement in Transformis' name.
5.2 If requested by ODI, Transformis shall provide reasonable cooperation
to assist ODI in the production of financial statements and to auditors
who may seek to audit such financial statements or information.
5.3 Transformis shall at anytime and from time to time, execute and deliver
such further instruments of conveyance and transfer and take such
additional actions as may be reasonably necessary to effect or evidence
the transactions contemplated by this Agreement.
ARTICLE 6 - REPRESENTATIONS, WARRANTIES & LIABILITY
6.1 As consideration for entering into this Agreement and as a condition
precedent thereto, as of the Closing, Transformis represents and
warrants the following to ODI:
6.1.1 That Transformis is a limited liability company duly
organized, validly existing and in good standing under the
laws of The State of Delaware, U.S.A. and it has full power
and authority to carry on its Business and own its properties.
6.1.2 That Transformis has full power and authority to enter into
and perform this Agreement and that Xx. Xxxx Xxxxxxxx has the
authority from Transformis to execute this Agreement and
transfer the Assets to ODI. Further, that the execution and
delivery of this Agreement, and all other documents required
to be executed and delivered by Transformis pursuant to this
Agreement, the taking of all actions required in connection
herewith or therewith, and the performance by Transformis of
the obligations to be performed by Transformis hereunder and
thereunder have been duly authorized by all necessary action
of Transformis. Further, that this Agreement has been, and on
the Closing Date all other documents required to be executed
and delivered by Transformis pursuant to this Agreement shall
be, duly executed and delivered by Transformis and constitute
the valid and binding obligation of Transformis enforceable
against it in accordance with their respective terms.
6.1.3 That neither the execution, delivery and performance of this
Agreement by Transformis nor the consummation by Transformis
of the transactions contemplated hereby will:
(a) violate, conflict with or result in any breach of or
default under or permit the acceleration of any obligation
or loss of any rights, or give rise to any obligation
under, the provisions of the charter, operating agreement
or other organizational documents of Transformis, any of
the Contracts or any other agreement, lease, license,
instrument or other document to which Transformis is a
party or by which Transformis or any of its properties are
bound, or any consent, approval, filing, order, license,
authorization, registration, judgment or decree or, to the
best of Transformis' knowledge, any statute, law,
ordinance, rule or regulation applicable to Transformis,
its Business or any of the Assets of other properties of
Transformis or any of the transactions contemplated
hereby; or
(b) result in the creation of any lien, claim or encumbrance
upon the Assets.
6.1.4 That all consents and approvals of and notifications to any
governmental authority or other person not a party hereto
required in connection with the execution and delivery of this
Agreement by Transformis or the performance by Transformis of
its obligations hereunder, or the transfer of the ownership of
any of the Assets, have been obtained or made.
6.1.5 That at the Closing, the Contracts will be legally transferred
to ODI, with Transformis and all other contracting parties'
consent, and that Transformis has the authority to transfer
the Contract(s) to ODI or any ODI subsidiary.
6.1.6 That no notice from any governmental body has been served upon
Transformis claiming any violation of any applicable laws,
regulations and ordinances relating to the Assets. Further,
that there is not, to the best of Transformis' knowledge, any
unsatisfied requisition by or dispute with any government
authority or other body or official of competent jurisdiction
affecting or relating to the Assets.
6.1.7 That all of the Assets shall be immediately prior to the
Closing, the absolute and exclusive property of Transformis,
that the Assets will, at the Closing pass to ODI with good
marketable title, free of any option, right to acquire,
assignment, mortgage, charge, lien, lease, infringement, or
any other encumbrance or adverse interest whatsoever and that
none of the Assets is the subject of any purchase, conditional
sale, or credit sale agreement, except in any case as and to
the extent created by ODI or its affiliates.
6.1.8 That, as of the Closing Date, Transformis has delivered to ODI
the Software and the original (or a copy if the original is
not available) of each of the Contracts.
6.1.9 That with the exception of the Contracts, there are no
licenses or authorizations (a) which Transformis has granted
to any third party with respect to the Software; and (b) which
are required for ODI to obtain all rights, title and interests
in the Assets.
6.1.10 With respect to the Contracts;
(a) that they are valid, in full force and effect and
binding and enforceable upon the parties thereto in
accordance with their respective terms; and
(b) that Transformis has paid in full or accrued all
amounts due and payable by it thereunder and has
satisfied in all material respects, or adequately
reserved or otherwise provided for, all of its
liabilities and obligations thereunder; and
(c) that Transformis is not in default under any Contract,
nor is any other party to any such agreement or
arrangement in default thereunder, which default would
have a materially adverse effect on Transformis' rights
under such Contract or any license granted to or by
Transformis under such Contract; and
(d) that Transformis has obtained all necessary approvals
and consents in relation to each of the Contracts, and
that the current rights of Transformis under each of
the Contracts will continue in full force and effect in
favor of ODI following the novation of the Contracts to
ODI contemplated by Clause 4.2.3(c) and the
consummation of the transactions contemplated by this
Agreement.
6.1.11 That, as of the Closing Date, Transformis has no liabilities
of any kind or nature, whether absolute or contingent or
otherwise, that are not disclosed on the balance sheet of
Transformis as of August 31, 1999, certified by Xxxx Xxxxxxxx,
which has herewith been delivered to ODI, or have not
otherwise been disclosed in writing to ODI.
6.1.12 That, there are no pending or threatened disputes,
controversies with any party holding any rights under the
Contracts or relating to the Software nor any valid basis for
such a dispute.
6.1.13 That there are no suits, actions or claims or legal,
administrative, mediation or arbitration proceedings or
investigations (collectively "Actions") (whether or not the
defense thereof or liabilities in respect thereof are covered
by policies of insurance) pending or threatened against
Transformis or otherwise involving the Assets. There are no
Actions pending which would give rise to any right of
indemnification from Transformis or any successor to the
Assets and no valid basis for any such Action exists.
6.1.14 That, to the best of Transformis' knowledge, the Software does
not infringe any third party intellectual or proprietary
property rights, and that in no instance has the eligibility
of the Software for protection under applicable copyright law
been forfeited to the public domain by omission of any
required notice or any other action.
6.1.15 That Transformis has promulgated and used its best efforts to
enforce a trade secret protection program, and that insofar as
Transformis knows, there has been no material violation of
such program by any person or entity, and that the source code
and system documentation relating to the Software have (1) at
all times been maintained in confidence and (2) been disclosed
by Transformis only to employees and consultants, under
obligations of confidentiality, having "a need to know" the
contents thereof in connection with the performance of their
duties to Transformis.
6.1.16 That all personnel, including employees, agents, consultants,
and contractors, who have contributed to or participated in
the conception and development of the Software, technical
documentation related thereto, or Intellectual Property or
other Assets on behalf of Transformis either have (1) been
party to a "work-for-hire" arrangement or agreement with
Transformis, in accordance with applicable federal and state
law, that has accorded Transformis full, effective, exclusive,
and original ownership of all tangible and intangible property
thereby arising, or (2) executed appropriate instruments of
assignment in favor of Transformis as assignee that have
conveyed to Transformis full, effective, and exclusive
ownership of all tangible and intangible property thereby
arising.
6.1.17 That the technical documentation for the Software includes the
source code, system documentation, statements of principles of
operation, and schematics for all Software, as well as any
pertinent commentary or explanation that may be necessary to
render such materials understandable and usable by a trained
computer programmer in C++, and that the Software and
documentation contain no other programming or materials in
which any third party may claim superior, joint, or common
ownership, including any right or license, and do not contain
derivative works of any programming or materials not owned in
their entirety by Transformis and included in the Assets.
6.1.18 That all accounts receivable of Transformis, if any, are fully
collectible within the customary collection cycle, subject
only to bad debts that will not exceed the amount of bad debt
reserves set aside by Transformis, and all accounts receivable
call for payment to be made within at least sixty (60) days to
the principal office of Transformis.
6.1.19 That all tax returns of every kind (including returns of real
and personal property taxes, intangible taxes, withholding
taxes, and FICA and unemployment compensation taxes) relating
to the Software and other Assets that are due to have been
filed in accordance with any applicable law have been duly
filed; and all taxes shown to be due on such returns have been
paid in full.
6.1.20 That Transformis has not authorized any person to act as
broker or finder or in any other similar capacity in
connection with the transactions contemplated by this
Agreement in any manner that may or will impose liability on
ODI.
6.1.21 That all written materials delivered or to be delivered by or
on behalf of Transformis to ODI in connection with this
Agreement and the transactions contemplated hereby do not,
when read together, in light of the circumstances under which
the statements contained in those materials were made,
contain:
(a) any untrue statement of material fact; or
(b) any statement which is false or misleading as a result of
the failure to include or state a material fact which is
necessary to prevent the statement from being false or
misleading.
6.1.22 That Transformis has no subsidiaries.
6.1.23 Transformis acknowledges that ODI has entered into this
Agreement in reliance upon the above representations and
warranties.
6.1.24 Transformis acknowledges that each of the warranties is
separate and independent.
6.2 As consideration for entering into this Agreement and as a
condition precedent thereto, as of the Closing, ODI represents
and warrants to Transformis the following:
6.2.1 That ODI is a corporation duly organized, validly existing and
in good standing under the laws of the United States of
America.
6.2.2 That this Agreement and Exhibits C, D and E hereto when
delivered at the Closing have been duly authorized, executed
and delivered by ODI, that ODI has the right, power, authority
and legal capacity to enter into and perform the obligations
to be performed by it hereunder and thereunder, and that this
Agreement and Exhibits C, D and E when executed and delivered
at the Closing constitute valid and binding obligations of ODI
enforceable against it in accordance with their respective
terms.
6.2.3 That all consents and approvals of and notifications to any
governmental authority or other person not a party hereto
required in connection with the execution and delivery of this
Agreement by ODI or the performance by ODI of its obligations
hereunder have been obtained or made.
6.2.4 That neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will:
(a) violate any provision of the Certificate of
Incorporation or By-laws of ODI or any material law,
regulation, ordinance, judgement or decree applicable
to ODI and its ability to perform its obligations
hereunder; or
(b) violate or conflict with any agreement to which ODI
presently is a party
6.2.5 That ODI has the cash to make the payments indicated in
section 3.1.1 hereof.
6.2.6 ODI acknowledges that Transformis has entered into this
Agreement in reliance upon the above representations and
warranties.
ARTICLE 7 - INDEMNIFICATION
7.1 Subject to the provisions of Clause 7.4, from and after the Closing,
Transformis (an "Indemnifying Party") shall indemnify and hold harmless
ODI and its directors, officers, employees, affiliates, agents,
representatives, successors and assigns (collectively, "Indemnified
Parties") from and against any and all losses, liabilities, claims,
costs, expenses (including but not limited to reasonable attorneys'
fees), damages and deficiencies resulting from:
(a) any breach of any representation or warranty made by
Transformis pursuant to this Agreement or in any certificate,
instrument or other document delivered pursuant hereto, or any
failure by Transformis to fulfill any covenant, indemnity,
undertaking or agreement on the part of Transformis contained
in this Agreement;
(b) any and all investigations, actions, suits, proceedings,
claims, demands, assessments or judgments, or the defenses of
any claims, related to the foregoing; and
(c) any liabilities or obligations of any kind or nature
whatsoever, whether accrued, absolute, contingent, or
otherwise, known or unknown, arising out of or in connection
with the conduct of Transformis or the ownership or use of the
Assets prior to and/or after the Closing Date.
7.2 Subject to the provisions of Clause 7.4, from and after the Closing,
ODI (an "Indemnifying Party") shall indemnify and hold harmless
Transformis and its members, employees, affiliates, agents,
representatives, successors and assigns (collectively, "Indemnified
Parties") from and against any and all losses, liabilities, claims,
costs, expenses (including but not limited to reasonable attorneys'
fees), damages and deficiencies resulting from:
(a) any breach of any representation or warranty made by ODI
pursuant to this Agreement or in any certificate, instrument
or other document delivered pursuant hereto, or any failure by
ODI to fulfill any covenant, indemnity, undertaking or
agreement on the part of ODI contained in this Agreement;
(b) any and all investigations, actions, suits, proceedings,
claims, demands, assessments or judgments, or the defenses of
any claims, related to the foregoing; and
(c) any liabilities or obligations of any kind or nature
whatsoever, whether accrued, absolute, contingent, or
otherwise, known or unknown, arising out of or in connection
with the ownership or use of the Assets only as modified by
ODI and/or combined with other technology by ODI, provided
that such modification or combination gives rise to an
infringement claim against Transformis, and such claim would
not have arisen but for such modification and/or combination,
after the Closing Date.
7.3 If an Indemnifying Party is obligated to indemnify any Indemnified
Party pursuant to Clause 7.1 or 7.2, or in the event that any action is
begun as a result of which an Indemnifying Party may become obligated
to any Indemnified Party, then the Indemnified Party shall give prompt
written notice thereof to the Indemnifying Party; provided however that
the failure so to notify the Indemnifying Party shall not relieve it
from any liability which it may have to any Indemnified Party otherwise
than under such Clause, and shall not relieve the Indemnifying Party
from liability under such Clause unless the Indemnifying Party is
prejudiced by such omission.
In case such action is brought against any Indemnified Party and the
Indemnified Party notifies the Indemnifying Party of the commencement
thereof, the Indemnified Party shall have the right to participate in,
and to the extent that it may wish, assume the defense of such action
with counsel reasonably satisfactory to the Indemnifying Party. An
Indemnified Party may not settle any such action without the prior
consent of the Indemnifying Party, which consent shall not be
unreasonably withheld or delayed.
Notwithstanding the right of the Indemnified Party to assume the
defense of any action to which it may become a party or a target, the
Indemnifying Party shall have the right to employ separate counsel and
to participate in the defense of such action at its own cost.
7.4 Liability
7.4.1 Each party's liability for indemnification under this Article
7 shall be limited to a maximum aggregate amount of
US$1,000,000.
7.4.2 Each party's liability for indemnification under this Article
7 shall continue for a period of one (1) year from the Closing
Date.
ARTICLE 8 - CONFIDENTIALITY
8.1 Until Closing (and, if this Agreement is terminated for any reason, for
a period of five (5) years thereafter), ODI shall, and shall use its
reasonable efforts to cause its personnel and agents to, hold in strict
confidence, not disclose to any person without the prior written
consent of Transformis, and not use in any manner except in connection
with the transactions contemplated hereby, any confidential business or
technical information obtained from Transformis in connection with the
transactions contemplated hereby concerning the Software or the other
Assets. This obligation shall cease to apply to ODI upon the occurrence
of Closing. In the event that this Agreement terminates for any reason,
ODI shall return to Transformis or destroy, only at Transformis'
instruction, all materials in its possession containing any such
confidential information, including all copies, extracts, adaptations,
and transcriptions thereof.
8.2 Until Closing (and, if this Agreement is terminated for any reason, for
a period of five (5) years thereafter), Transformis shall, and shall
use its reasonable efforts to cause its personnel and agents to, hold
in strict confidence, not disclose to any person without the prior
written consent of ODI, and not use in any manner whatsoever, any
confidential business or technical information remaining in its
possession concerning ODI. This
obligation shall cease to apply to Transformis upon the occurrence of
Closing. In the event that this Agreement terminates for any reason,
Transformis shall return to ODI or destroy, only at ODI's instruction,
all materials in its possession containing any such confidential
information, including all copies, extracts, adaptations, and
transcriptions thereof.
8.3 Notwithstanding Sections 8.1 and 8.2, either party may disclose
confidential information (1) where necessary to any regulatory
authorities or governmental agencies pursuant to legal process or (2)
if required by court order or decree.
8.4 For purposes of this Agreement, information shall not be deemed
confidential (1) if such information is available in full from public
sources; (2) if such information is received from a third party not
under an obligation to keep such information confidential; or (3) if
the recipient can conclusively demonstrate that such information was
independently developed by the recipient or was in the possession of
recipient prior to disclosure.
ARTICLE 9 - TERMINATION PRIOR TO CLOSING
9.1 This Agreement may be terminated at any time prior to the Closing:
(a) By the mutual consent of Buyer and Seller; or
(b) By Buyer or Seller, in writing, without liability, if the
Closing shall not have occurred on or before October 31, 1999;
or
(c) By Buyer or Seller in writing, without liability, if the other
party shall (1) fail to perform in any material respect its
agreements contained herein required to be performed by it on
or prior to the Closing Date or (2) materially breach any of
its representations, warranties, agreements, or covenants
contained herein, provided that such failure or breach is not
cured within thirty (30) days after such party has been
notified of the other party's intent to terminate this
Agreement pursuant hereto; or
(d) As provide in Clause 4.5
9.2 Termination of this Agreement pursuant to this Article 9 shall
terminate all obligations of the parties hereunder, except for the
obligations set forth in Article 8 and Clauses 10.6 and 10.7.
ARTICLE 10 - GENERAL PROVISIONS
10.1 All the Clauses in this Agreement are distinct and severable, and if
any Clause is held unenforceable, illegal or void in whole or in part
by a court, regulatory authority or other competent authority, it shall
to that extent be deemed not to form part of this Agreement, and the
enforceability, legality and validity of the remainder of this
Agreement will not be affected, however the Agreement shall, to the
fullest extent permitted by law, be reformed and construed consistent
with the parties' intent.
10.2 Transformis may not assign this Agreement or any rights or obligations
hereunder, without ODI's prior written consent.
10.3 This Agreement and all Exhibits hereto (together with any documents to
be executed pursuant to Article 5) supersedes all prior
representations, arrangements, understandings and agreements between
the parties hereto relating to the subject-matter hereof, and sets
forth the entire, complete and exclusive agreement and understanding as
at the date hereof between the parties relating to the subject matter
hereof. No waiver of any provision shall constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the
party making the waiver. No amendment, modification, or alteration of
the terms or provisions of this Agreement shall be binding unless the
same shall be in writing and duly executed by the parties hereto.
10.4 Nothing in this Agreement, whether express or implied is intended to
confer any rights or remedies under this Agreement on any persons other
than the parties to it and their respective successors and permitted
assigns, nor is anything in this Agreement intended to relieve or
discharge the obligations or liability of any third persons to any
party to this Agreement, nor shall any provision give any third persons
any right of subrogation or action against any party to this Agreement.
10.5 Notices:
10.5.1 Any notice or other communication to be given or served under
this Agreement shall be in writing, addressed to the relevant
party and expressed to be a notice or communication under this
Agreement and, without prejudice to the validity of another
method of service may be delivered or sent by a recognized
international courier or telecopier addressed as follows:
Transformis' Address: 000 Xxxxxxxxxxxxx Xxxxxx
Number 221
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Fax No.:
ODI's Address: Twenty-five Mall Road
Burlington, MA 01803-4194
U.S.A.
Attention: General Counsel
Fax No.: 000-000-0000
or to such other address or telecopier number as the addressee
may have previously substituted by notice.
10.5.2 Any such notice will be deemed to have been duly served or
given:
(a) in the case of delivery, at the time of delivery;
(b) in the case of telecopier, upon transmission, subject
to the correct code or telecopier number being
received on the transmission report
provided, however, that if a notice is not given or
served during usual business hours on a business day,
it will be deemed to be given or served on the next
following business day.
10.6 Transformis shall not make any announcements or disclosures as to the
subject matter of this Agreement except in a form and manner acceptable
to ODI and at such time as ODI deems appropriate and as may be required
by law.
10.7 Each party shall pay its own costs and expenses in negotiating and
preparing this Agreement and in closing and carrying out the
transactions contemplated by such party under this Agreement, including
without limitation, legal and accounting fees.
10.8 From and after the date of this Agreement until the earlier of the
Closing or termination of this Agreement in accordance with Article 9
hereof (the "Exclusivity Period"), Transformis will not, directly or
indirectly, through any officer, director, employee, affiliate or agent
of Transformis or otherwise, solicit, initiate, seek, entertain,
encourage or support any inquiry, proposal or offer from, furnish any
information to, or participate in any negotiations with, any third
party regarding any acquisition of Transformis, any merger or
consolidation with or involving Transformis, or any acquisition of any
material portion of the stock or assets of Transformis. Transformis
agrees that, in no event, will it accept or enter into an agreement
concerning any such third party acquisition transaction during the
Exclusivity Period. Transformis will notify ODI immediately after
receipt by Transformis (or any of its officers, directors, employees,
affiliates or agents) at any time during the Exclusivity Period of any
unsolicited proposal or request for, or inquiry respecting, any third
party acquisition transaction involving Transformis by any person or
entity. Such notice to ODI will indicate in reasonable detail the
identity of the person making the proposal or inquiry and the terms and
conditions of such proposal or inquiry.
10.9 This Agreement and all relationships created hereby will in all respect
be enforced, governed by, and construed in accordance with the laws of
The Commonwealth of Massachusetts, U.S.A. without regard to its
principles of conflicts of laws.
10.10 It is irrevocably agreed that the jurisdiction and venue of any action
with respect to this Agreement shall be in a court of competent subject
matter jurisdiction located in The Commonwealth of Massachusetts, USA.
AGREED by authorized representatives of both parties:
OBJECT DESIGN, INC. TRANSFORMIS LLC
Signature:________________________ Signature:______________________
Name:_____________________________ Name:___________________________
Title:____________________________ Title:__________________________
EXHIBIT A
ASSETS
I. SOFTWARE
A. The software described as "Stylus XSL Development Tool" and
the source code, object code, firmware and all operating
manuals and other documentation relating to such software.
B. All software that has been jointly developed or is currently
being jointly developed by Transformis and ODI, including but
not limited to the following software programs and any
revisions, updates, and/or modifications thereto even if the
name of the software program is changed, and the source code,
object code, firmware and all operating manuals and other
documentation relating to such software: None.
II. CONTRACT(S)
A. Stringay Software Objective Edit; one developer license
B. Roguewave Software Tool.h++; one developer license
C. one Microsoft Developer Network Library subscription
D. Source OffSite Server; one client license
E. Transformis has Pre-Release Software Agreements, in the form
attached as Attachment A, with 322 testers of the "alpha"
version of the Software, who are listed on Attachment B to
this Exhibit A.
ATTACHMENT B
(See the Attached Alpha Program Participants List)
EXHIBIT B
NOVATION CONSENT
Supplier: [NAME]
Agreement:
The Supplier understands that Transformis LLC ("Transformis") intends to sell
(or has sold) to Object Design, Inc. ("ODI") the following licenses: in
accordance with the Agreement referenced to above (the "Assets") [SPECIFIC LIST
OF LICENSES]. Supplier agrees, that, as of October 5, 1999, the Agreement is
novated so that:
(a) ODI is substituted for Transformis under the Agreement as if ODI had
originally been a party to the Agreement instead of Transformis;
(b) ODI is bound by and will comply with all the provisions of the
Agreement and will enjoy all the rights and benefits of Transformis
under the Agreement;
(c) ODI will meet all obligations and liabilities to the Supplier under the
Agreement; and
(d) Supplier will meet all liabilities and obligations to ODI under the
Agreement;
(e) Supplier releases and discharges Transformis from all obligations and
all claims or proceedings under the Agreement.
Executed as a deed
Date:_______________________
Signed, sealed and delivered on behalf of the Supplier by:
Signature:______________________________________
Name:___________________________________________
Title/Position:_________________________________
Executed as a deed
Date:_______________________
Signed, sealed and delivered on behalf of Transformis by:
Signature:______________________________________
Name:___________________________________________
Title/Position:_________________________________
Executed as a deed
Date:_______________________
Signed, sealed and delivered on behalf of ODI by:
Signature:______________________________________
Name:___________________________________________
Title/Position:_________________________________
EXHIBIT C
CONTRACT OF EMPLOYMENT
by and between
OBJECT DESIGN, INC.
and
XXXX XXXXXXXX
This A.greement is between Object Design, Inc. ("Company") and Xxxx Xxxxxxxx
("Employee").
1. EMPLOYMENT
The Company agrees to employ Employee and Employee accepts such
employment, upon the terms and conditions hereinafter set forth, for a
period of twenty-four (24) months beginning on October 5, 1999 (the
"Initial Term"), and thereafter as an employee at will.
2. DUTIES
A. Employee shall be employed as a member of the Company's
Technical Staff and shall be responsible for modifying and
developing software and shall have such other duties and
responsibilities as the Board of Directors of the Company or
their designee(s) shall determine from time to time.
B. Employee agrees during the term of this Agreement to devote on a
full-time basis, his time, energy and ability to the business of
the Company.
3. COMPENSATION AND BENEFITS
A. Employee's gross annual salary shall be $75,000, payable
on a semi-monthly basis and subject to an annual review process.
In addition, subject to approval of the Board of Directors, the
Company agrees to grant Employee an option to purchase 133,000
shares of Common Stock pursuant to the Company's 1997
Nonqualified Stock Option Plan. Such options shall have an
exercise (purchase) price per share of one dollar ($1.00); shall
vest 50% at the end of each twelve-month period after the date
of the grant; and shall be converted, in accordance with the
Company's then-current policy, to "eXcelon Options" in the event
of a spin-off of the eXcelon division from the Company.
B. Upon commencement of the employment, Employee shall be entitled
to participate in the then current benefit programs offered by
the Company for which he is eligible. Such participation shall
be subject to the terms of the applicable plan documents and
Company policies. The Company reserves its right, in its sole
discretion, and as allowed by law, to modify, suspend or
discontinue any or all such benefits at any time without
recourse by the Employee.
C. Except to the extent the terms of any benefit programs or stock
option grants provide for the survival of rights or benefits,
upon death of Employee, all rights of Employee under this
Agreement shall terminate, with the exception of rights which
accrued prior to the date of death.
D. Employee shall be reimbursed for approved business expenses in
accordance with Company's then current travel and expense
policy.
4. NON-COMPETITION, NON-DISCLOSURE
Employee agrees to be bound by the Non-Competition, Non-Disclosure and
Developments Agreement incorporated herein by reference and attached
hereto as Appendix A.
5. TERMINATION
A. Termination for Cause. The Company shall have the right, at any
time, at its sole option and upon giving the required legal
notice, to terminate this Agreement for one or more of the
following occurrences ("Cause"):
1. conviction of the Employee or a plea of nolo contendere
for any felony or any other crime involving moral
turpitude;
2. willful misconduct, fraud, embezzlement, or other material
dishonesty on the part of Employee;
3. a material failure of the Employee to perform his duties
under Section 2 hereof (other than as a result of
documented physical or mental illness) which continues
after written demand for performance is delivered to the
Employee which demand specifically identifies the manner
in which it is alleged that the Employee has materially
failed to perform his duties;
4. material breach by the Employee of any provision of this
Agreement and attached Exhibit A which is not remedied
within thirty (30) days of receiving written notice of
such breach.
B. Other Termination. After the Initial Term, the Employee shall
be an employee at will and the Company shall have the right at
any time, at its option and upon giving the required legal
notice, to terminate this Agreement for any reason or no
reason.
6. EFFECT OF TERMINATION
A. If the Company terminates this Agreement for Cause at any
time or without Cause after the Initial Term, or the
Employee terminates this Agreement at any time for any
reason, then upon termination, the Employee's then current
benefits shall terminate in accordance with Company policy
or as required by law, except that the Company shall
remain obligated in respect to and will pay all such
salary and other benefits as may be accrued and unpaid on
the date of termination.
B. If Company terminates this Agreement without Cause during
the Initial Term, then the Employee's then current
benefits shall continue until the expiration of the
Initial Term in accordance with Company policy or as
required by law, and the Company shall remain obligated in
respect to and will pay all salary that Employee would
otherwise be entitled to receive hereunder until the
expiration of the Initial Term.
7. CONFLICTING AGREEMENTS
Employee hereby represents and warrants that the execution of this
Agreement and the performance of Employee's obligations hereunder will
not breach or be in conflict with any other agreement to which Employee
is a party or is bound and that Employee is not now subject to any
covenants against competition, covenants of confidentiality or similar
covenants with any person or entity other than the Company.
8. ENFORCEMENT OF COVENANTS
Employee acknowledges and agrees that, were Employee to breach any of
the covenants contained in Appendix A, the Non-Competition,
Non-Disclosure and Developments Agreement, the damage to the Company
may be irreparable, and that money damages alone may not be an adequate
remedy. Accordingly, Employee agrees that the Company and its assigns,
in addition to any other remedies available to them, shall be entitled
to seek preliminary and permanent injunctive relief against any breach
or threatened breach by Employee of any of said covenants, without
posting bond.
9. MISCELLANEOUS
A. Employee understands that this Agreement does not create an
obligation on the Company or any other person or entity to
continue to employ Employee beyond the Initial Term.
B. Any waiver by the Company of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any
subsequent breach of such provision or any other provision
hereof.
C. Employee hereby agrees that each provision herein shall be
treated as a separate and independent clause, and the
unenforceability of any one clause shall in no way impair the
enforceability of any of the other clauses herein. Moreover,
if one or more of the provisions contained in this Agreement
shall for any reason be held to be excessively broad as to
scope, activity or subject so as to be unenforceable at law,
such provision or provisions shall be construed by the
appropriate judicial body by limiting and reducing it or them,
so as to be enforceable to the maximum extent permitted by
applicable law.
D. This Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts,
without regards to its principles of conflicts of law.
E. Appendix A hereto is incorporated in and made a part of this
Agreement. This Agreement contains the entire and only
agreement between Employee and the Company respecting the
subject matter hereof, and no modification, renewal,
extension, waiver or termination of this Agreement or any of
the provisions herein contained shall be binding upon Employee
or the Company unless made in writing and signed by an
authorized officer of the Company.
F. Any notices to be given hereunder shall be in writing and
shall be delivered by hand, by registered, certified or
overnight mail to the appropriate address set forth below or
to such other address as specified by notice.
G. The term "Company" shall include Object Design, Inc. and any
of its subsidiaries, subdivisions or affiliates. The Company
shall have the right to assign this Agreement to its successor
and assigns, and all covenant and agreements hereunder shall
inure to the benefit of and be enforceable by said successors
or assigns.
BY PLACING MY SIGNATURE HEREUNDER, I ACKNOWLEDGE THAT I HAVE READ ALL OF THE
PROVISIONS OF THIS AGREEMENT AND THAT I AGREE TO ALL OF ITS TERMS.
SIGNATURE OF EMPLOYEE:__________________________________________
ADDRESS:________________________________________________________
DATE:___________________________________________________________
ACCEPTED BY OBJECT DESIGN, INC.
ADDRESS:________________________________________________________
BY:_________________________________
NAME:_______________________________
TITLE:______________________________
DATE:_______________________________
APPENDIX A
NON-COMPETITION, NON-DISCLOSURE
AND DEVELOPMENTS AGREEMENT
In consideration of my employment, consulting or advisory relationship
("Employment"), as the case may be, with Object Design, Inc., a Delaware
corporation with its principal place of business in Burlington, Massachusetts,
and in recognition of the fact that as a result of such relationship I will or
may have access to confidential information, I agree with the Company (as
defined below) as follows:
1. Agreement Not to Compete with the Company
(a) As long as I am employed or retained by the Company and for a period of one
year after the termination of my Employment with the Company by me for any
reason, including expiration of the previously agreed upon term of my
Employment, or by the Company for or without Cause, as defined in my Employment
Agreement of even date, I shall not, on my behalf, or as owner, manager,
stockholder, consultant, director, officer or employee of any business entity,
participate in the development or provision of goods or services which are
competitive with goods or services sold or licensed, or under development, by
the Company without the prior written authorization of the Company; provided,
however, that I may, without the Company's prior written authorization, own (i)
up to one percent (1%) of the issued and outstanding securities of any publicly
held corporation or (ii) any securities in any non-public corporation which I
owned prior to the date of my Employment. In the event that the Company and I
disagree about whether any business entity develops or provides goods or
services which are competitive with goods or services sold or licensed, or under
development, by the Company at the date of termination, the disagreement shall
be resolved either (i) by decision of the Company's Board of Directors at their
next regularly scheduled board meeting acting in good faith after giving me a
suitable opportunity to present my view in person and/or in writing or (ii) if
either I or the Company gives notice to the Board of our objection to the
decision of the Board within 30 days after such decision, by arbitration as
provided herein. The Company and I agree that goods or services which are
competitive with goods or services sold or licensed, or under development, by
the Company shall not include goods and services used by any person or entity
(i) for such person or entity's non-public, in-house use, or (ii) for use as a
component in a good or service which is not competitive with goods or services
sold or licensed, or under development, by the Company.
If after the commencement of my Employment with the Company the Company
determines to change its line of business so as to provide goods or services
other than those sold or licensed, or under development, by the Company at the
commencement of my Employment, then the Company shall give me notice of such
determination.
(b) For a period of one year after the termination of my Employment with the
Company by me for any reason, including expiration of the previously agreed upon
term of my Employment, or by the Company for or without Cause, I shall not, on
my own behalf, or as owner, manager, stockholder, consultant, director, officer
or employee of any business entity, take away any of the customers that the
Company had enjoyed during my Employment with the Company.
(c) For a period of one year after the termination of my Employment with the
Company by me for any reason, including expiration of the previously agreed upon
term of my Employment, or by the Company for or without Cause, I shall not
solicit, induce, attempt to hire, or hire any employee of the Company (or any
other person who may have been employed by the Company during the six months
prior to the termination of my Employment), or assist in such hiring by any
other person or business entity or encourage any such employee to terminate his
or her employment with the Company.
(d) I recognize that the Company is developing highly specialized products and
services in competition with the other business entities throughout the United
States and the world, which products and services are designed to compete in
regional, nation-wide and world-wide markets. In light of the competitive nature
of the Company's products and services, I agree that the restrictions contained
in this Section 1 cannot be limited to any geographic area.
2. Confidentiality Agreement
(a) I will not at any time, whether during or after the termination of my
Employment, reveal to any person or entity any of the Confidential Information
of the Company or of any third party which the Company is under an obligation to
keep confidential. The term "Confidential Information" as used throughout this
Agreement shall mean all trade secrets, proprietary information and other data
or information (and any tangible evidence, record or representation thereof),
whether prepared, conceived or developed by an employee of the Company
(including myself) or received by the Company from an outside source, which is
in the possession of the Company (whether or not the property of the Company),
which in any way relates to the present or future business of the Company or any
customer or supplier of the Company, and which is maintained in confidence by
the Company. Without limiting the generality of the foregoing, "Confidential
Information" shall mean all trade secrets, know-how, proprietary information and
other information or data relating to the present or future business of the
Company, including but not limited to:
(i) any idea, improvement, invention, innovation, development technical
data, design, formula, device, pattern, concept, computer program, software,
firmware, source code, object code, algorithm, subroutine, object module,
schematic, model, diagram, flow chart, chip masking specification, user manual,
training or service manual, product specification, plan for a new or revised
product, compilation of information, or work in process, and any and all
revisions and improvements relating to any of the foregoing (in each case
whether or not reduced to tangible form); and
(ii) the name of any customer, employee, prospective customer or
consultant, any sales plan, marketing material, plan or survey, business plan,
product or development plan or specification, business proposal, financial
record, or business record or other record or information relating to the
business of the Company.
Notwithstanding the foregoing, the term Confidential Information shall not apply
to information (i) which the Company has voluntarily disclosed to the public
without restriction, (ii) which has otherwise lawfully entered the public
domain, (iii) which the Company has permitted me to disclose by its prior
written consent; or (iv) which I may disclose at a forum, workshop or round
table conference with the prior knowledge of the Company.
(b) I further represent that my performance of all of the terms of this
Agreement and as an employee, consultant or advisor of the Company does not and
will not breach any agreement to keep in confidence Confidential Information
acquired by me prior to my Employment by the Company. I have not entered into,
and I agree I will not enter into, any agreement either written or oral in
conflict herewith.
(c) Further, I agree that during my Employment I shall not make, use or permit
to be used any notes, memoranda, reports, lists, records, drawings, sketches,
specifications, software programs, data, documentation or other materials of any
nature relating to any matter within the scope of the business of the Company or
concerning any of its dealings or affairs otherwise than for the benefit of the
Company. I further agree that I shall not, after the termination of my
Employment, use or permit to be used any such notes, memoranda, reports, lists,
records, drawings, sketches, specifications, software programs, data,
documentation or other materials, it being agreed that all of the foregoing
shall be and remain the sole and exclusive property of the Company and that
within ten (10) days after the termination of my Employment I shall either (i)
deliver all of the foregoing, and all copies thereof, to the Company, at its
main office or (ii) destroy all of the foregoing, and all copies thereof, and
deliver a sworn notice to the Company certifying to such destruction.
(d) The Company shall make adequate provision for the safekeeping of any notes,
memoranda, reports, lists, records, drawings, sketches, specifications, software
programs, data, documentation or other materials of any nature relating to any
matter within the scope of the business of the Company or concerning any of its
dealings or affairs, as requested by me upon notice to the Company given within
10 days after the termination of my Employment, and the Company shall provide me
with a notice setting forth that it has complied with such request.
3. Developments Agreement
(a) If at any time or times during my Employment, I shall (either alone or with
others) make, conceive, discover or reduce to practice any invention,
modification, discovery, design, development, improvement, process, software
program, work of authorship, documentation, formula, data, technique, know-how,
secret or any interest therein (whether or not patentable or registrable under
copyright or similar statutes or subject to analogous protection) (herein called
"Developments") that relate to the business of the Company or that relate to
software provided by suppliers to the Company and incorporated in the Company's
products, or any of the goods and services sold, licensed or under development
by the Company or result from the use of premises or personal property tangible
or intangible owned, leased or contracted for by the Company such Developments
and the benefits thereof shall immediately become the sole and absolute property
of the Company and its assigns, and I shall promptly disclose to the Company (or
any persons designated by it) each such Development and hereby assign any rights
I may have or acquire in the Developments and benefits and/or rights resulting
therefrom to the Company and its assigns without further compensation and shall
communicate, without cost or delay, and without publishing the same, all
available information relating thereto (with all necessary plans and models) to
the Company.
(b) Upon disclosure of each Development to the Company, I will, during my
Employment and at any time thereafter, at the request and cost of the Company,
sign, execute, make and do all such deeds, documents, acts and things as the
Company and its duly authorized agents may reasonably require:
(i) to apply for, obtain and vest in the name of the Company alone
(unless the Company otherwise directs) letters patent,
copyrights or other analogous protection in any country
throughout the world and when so obtained or vested to renew and
restore the same; and
(ii) to defend any opposition proceedings in respect of such
applications and any opposition proceedings or petitions or
applications for revocation of such letters patent, copyright or
other analogous protection.
In the event the Company is unable, after reasonable effort, to secure my
signature on any letters patent, copyright or other analogous protection
relating to a Development, whether because of my physical or mental incapacity
or for any other reason whatsoever, 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 application or applications and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent, copyright or other
analogous protection thereon with the same legal force and effect as if executed
by me.
(c) I understand that the Developments including, but not limited to, those
identified in the pages, if any, attached hereto, which I can demonstrate to the
satisfaction of the Company that I have made or conceived prior to my Employment
by the Company are excluded from this Agreement. I understand that it is only
necessary to list the title and purpose of such Developments but not details
thereof.
4. Miscellaneous
(a) I understand that this Agreement does not create an obligation on the
Company or any other person or entity to continue my Employment.
(b) Any waiver by the Company of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any subsequent breach of such
provision or any other provision hereof.
(c) I hereby agree that each provision herein shall be treated as a separate and
independent clause, and the unenforceability of any one clause shall in no way
impair the enforceability of any of the other clauses herein. Moreover, if one
or more of the provisions contained in this Agreement shall for any reason be
held to be excessively broad as to scope, activity or subject so as to be
unenforceable at law, such provision or provisions shall be construed by the
appropriate judicial body by limiting and reducing it or them, so as to be
enforceable to the maximum extent compatible with the applicable law as it shall
then appear.
(d) I recognize that money damages alone would not adequately compensate the
Company in the event of breach by me of this Agreement, and I therefore agree
that, in addition to all other remedies available to the Company at law or in
equity, the Company shall be entitled to injunctive relief for the enforcement
hereof. Failure by the Company to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such
terms, covenants or conditions.
(e) My obligations under this Agreement shall survive the termination of my
employment.
(f) The term "Company" shall include Object Design, Inc. and any of its
subsidiaries, subdivisions or affiliates. The Company shall have the right to
assign this Agreement to its successor and assigns, and all covenant and
agreements hereunder shall inure to the benefit of and be enforceable by said
successors or assigns.
(g) This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts.
(h) This Agreement contains the entire and only agreement between me and the
Company respecting the subject matter hereof, and no modification, renewal,
extension, waiver or termination of this Agreement or any of the provisions
herein contained shall be binding upon me or the Company unless made in writing
and signed by an authorized officer of the Company. In the event of any
inconsistency between this Agreement and any other contract between me and the
Company, the provisions of this Agreement shall prevail.
(i) Any notices to be given hereunder shall be in writing and shall be delivered
by hand, by registered, certified or overnight mail to the appropriate address
set forth below or to such other address as specified by notice.
(j) Any controversy or claim arising out of or relating to this Agreement, or
the breach thereof, shall be settled by arbitration in Boston, Massachusetts in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association, and judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof and shall be final and binding
upon the parties hereto. Notwithstanding anything to the contrary contained in
this Section 4(j), the Company shall have the right to seek injunctive relief,
specific performance or other equitable relief against me in a court of
competent jurisdiction.
BY PLACING MY SIGNATURE HEREUNDER, I ACKNOWLEDGE THAT I HAVE READ ALL OF THE
PROVISIONS OF THIS AGREEMENT AND THAT I AGREE TO ALL OF ITS TERMS.
____________________________
Signature
Address:
____________________________
____________________________
Date: __________________
Accepted:
OBJECT DESIGN, INC.
00 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
By: ________________________
Title: ____________________
EXHIBIT D
CONTRACT OF EMPLOYMENT
by and between
OBJECT DESIGN, INC.
and
XXXX XXXXX
This Agreement is between Object Design, Inc. ("Company") and Xxxx Xxxxx
("Employee").
1. EMPLOYMENT
The Company agrees to employ Employee and Employee accepts such
employment, upon the terms and conditions hereinafter set forth, for a
period of twenty-four (24) months beginning on October 5, 1999 (the
"Initial Term"), and thereafter as an employee at will.
2. DUTIES
A. Employee shall be employed as a member of the Company's
Technical Staff and shall be responsible for modifying and
developing software and shall have such other duties and
responsibilities as the Board of Directors of the Company or
their designee(s) shall determine from time to time.
B. Employee agrees during the term of this Agreement to devote on a
full-time basis, his time, energy and ability to the business of
the Company.
3. COMPENSATION AND BENEFITS
A. Employee's gross annual salary shall be $75,000, payable
on a semi-monthly basis and subject to an annual review process.
In addition, subject to approval of the Board of Directors, the
Company agrees to grant Employee an option to purchase 83,500
shares of Common Stock pursuant to the Company's 1997
Nonqualified Stock Option Plan. Such options shall have an
exercise (purchase) price per share of one dollar ($1.00); shall
vest 50% at the end of each twelve-month period after the date
of the grant; and shall be converted, in accordance with the
Company's then-current policy, to "eXcelon Options" in the event
of a spin-off of the eXcelon division from the Company.
B. Upon commencement of the employment, Employee shall be entitled
to participate in the then current benefit programs offered by
the Company for which he is eligible. Such participation shall
be subject to the terms of the applicable plan documents and
Company policies. The Company reserves its right, in its sole
discretion, and as allowed by law, to modify, suspend or
discontinue any or all such benefits at any time without
recourse by the Employee.
C. Except to the extent the terms of any benefit programs or stock
option grants provide for the survival of rights or benefits,
upon death of Employee, all rights of Employee under this
Agreement shall terminate, with the exception of rights which
accrued prior to the date of death..
D. Employee shall be reimbursed for approved business expenses in
accordance with Company's then current travel and expense
policy.
4. NON-COMPETITION, NON-DISCLOSURE
Employee agrees to be bound by the Non-Competition, Non-Disclosure and
Developments Agreement incorporated herein by reference and attached
hereto as Appendix A.
5. TERMINATION
A. Termination for Cause. The Company shall have the right, at any
time, at its sole option and upon giving the required legal
notice, to terminate this Agreement for one or more of the
following occurrences ("Cause"):
1. conviction of the Employee or a plea of nolo contendere
for any felony or any other crime involving moral
turpitude;
2. willful misconduct, fraud, embezzlement, or other material
dishonesty on the part of Employee;
3. a material failure of the Employee to perform his duties
under Section 2 hereof (other than as a result of
documented physical or mental illness) which continues
after written demand for performance is delivered to the
Employee which demand specifically identifies the manner
in which it is alleged that the Employee has materially
failed to perform his duties;
4. material breach by the Employee of any provision of this
Agreement and attached Exhibit A which is not remedied
within thirty (30) days of receiving written notice of
such breach.
B. Other Termination. After the Initial Term, the Employee shall
be an employee at will and the Company shall have the right at
any time, at its option and upon giving the required legal
notice, to terminate this Agreement for any reason or no
reason.
6. EFFECT OF TERMINATION
A. If the Company terminates this Agreement for Cause at any
time or without Cause after the Initial Term, or the
Employee terminates this Agreement at any time for any
reason, then upon termination, the Employee's then current
benefits shall terminate in accordance with Company policy
or as required by law, except that the Company shall
remain obligated in respect to and will pay all such
salary and other benefits as may be accrued and unpaid on
the date of termination.
B. If Company terminates this Agreement without Cause during
the Initial Term, then the Employee's then current
benefits shall continue until the expiration of the
Initial Term in accordance with Company policy or as
required by law, and the Company shall remain obligated in
respect to and will pay all salary that Employee would
otherwise be entitled to receive hereunder until the
expiration of the Initial Term.
7. CONFLICTING AGREEMENTS
Employee hereby represents and warrants that the execution of this
Agreement and the performance of Employee's obligations hereunder will
not breach or be in conflict with any other agreement to which Employee
is a party or is bound and that Employee is not now subject to any
covenants against competition, covenants of confidentiality or similar
covenants with any person or entity other than the Company.
8. ENFORCEMENT OF COVENANTS
Employee acknowledges and agrees that, were Employee to breach any of
the covenants contained in Appendix A, the Non-Competition,
Non-Disclosure and Developments Agreement, the damage to the Company
may be irreparable, and that money damages alone may not be an adequate
remedy. Accordingly, Employee agrees that the Company and its assigns,
in addition to any other remedies available to them, shall be entitled
to seek preliminary and permanent injunctive relief against any breach
or threatened breach by Employee of any of said covenants, without
posting bond.
9. MISCELLANEOUS
A. Employee understands that this Agreement does not create an
obligation on the Company or any other person or entity to
continue to employ Employee beyond the Initial Term.
B. Any waiver by the Company of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any
subsequent breach of such provision or any other provision
hereof.
C. Employee hereby agrees that each provision herein shall be
treated as a separate and independent clause, and the
unenforceability of any one clause shall in no way impair the
enforceability of any of the other clauses herein. Moreover,
if one or more of the provisions contained in this Agreement
shall for any reason be held to be excessively broad as to
scope, activity or subject so as to be unenforceable at law,
such provision or provisions shall be construed by the
appropriate judicial body by limiting and reducing it or them,
so as to be enforceable to the maximum extent permitted by
applicable law.
D. This Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts,
without regards to its principles of conflicts of law.
E. Appendix A hereto is incorporated in and made a part of this
Agreement. This Agreement contains the entire and only
agreement between Employee and the Company respecting the
subject matter hereof, and no modification, renewal,
extension, waiver or termination of this Agreement or any of
the provisions herein contained shall be binding upon Employee
or the Company unless made in writing and signed by an
authorized officer of the Company.
F. Any notices to be given hereunder shall be in writing and
shall be delivered by hand, by registered, certified or
overnight mail to the appropriate address set forth below or
to such other address as specified by notice.
G. The term "Company" shall include Object Design, Inc. and any
of its subsidiaries, subdivisions or affiliates. The Company
shall have the right to assign this Agreement to its successor
and assigns, and all covenant and agreements hereunder shall
inure to the benefit of and be enforceable by said successors
or assigns.
BY PLACING MY SIGNATURE HEREUNDER, I ACKNOWLEDGE THAT I HAVE READ ALL OF THE
PROVISIONS OF THIS AGREEMENT AND THAT I AGREE TO ALL OF ITS TERMS.
SIGNATURE OF EMPLOYEE:_____________________________________________
ADDRESS:___________________________________________________________
DATE:______________________________________________________________
ACCEPTED BY OBJECT DESIGN, INC.
ADDRESS:___________________________________________________________
BY:__________________________________
NAME:________________________________
TITLE:_______________________________
DATE:________________________________
APPENDIX A
NON-COMPETITION, NON-DISCLOSURE
AND DEVELOPMENTS AGREEMENT
In consideration of my employment, consulting or advisory relationship
("Employment"), as the case may be, with Object Design, Inc., a Delaware
corporation with its principal place of business in Burlington, Massachusetts,
and in recognition of the fact that as a result of such relationship I will or
may have access to confidential information, I agree with the Company (as
defined below) as follows:
1. AGREEMENT NOT TO COMPETE WITH THE COMPANY
(a) As long as I am employed or retained by the Company and for a period of one
year after the termination of my Employment with the Company by me for any
reason, including expiration of the previously agreed upon term of my
Employment, or by the Company for or without Cause, as defined in my Employment
Agreement of even date, I shall not, on my behalf, or as owner, manager,
stockholder, consultant, director, officer or employee of any business entity,
participate in the development or provision of goods or services which are
competitive with goods or services sold or licensed, or under development, by
the Company without the prior written authorization of the Company; provided,
however, that I may, without the Company's prior written authorization, own (i)
up to one percent (1%) of the issued and outstanding securities of any publicly
held corporation or (ii) any securities in any non-public corporation which I
owned prior to the date of my Employment. In the event that the Company and I
disagree about whether any business entity develops or provides goods or
services which are competitive with goods or services sold or licensed, or under
development, by the Company at the date of termination, the disagreement shall
be resolved either (i) by decision of the Company's Board of Directors at their
next regularly scheduled board meeting acting in good faith after giving me a
suitable opportunity to present my view in person and/or in writing or (ii) if
either I or the Company gives notice to the Board of our objection to the
decision of the Board within 30 days after such decision, by arbitration as
provided herein. The Company and I agree that goods or services which are
competitive with goods or services sold or licensed, or under development, by
the Company shall not include goods and services used by any person or entity
(i) for such person or entity's non-public, in-house use, or (ii) for use as a
component in a good or service which is not competitive with goods or services
sold or licensed, or under development, by the Company.
If after the commencement of my Employment with the Company the Company
determines to change its line of business so as to provide goods or services
other than those sold or licensed, or under development, by the Company at the
commencement of my Employment, then the Company shall give me notice of such
determination.
(b) For a period of one year after the termination of my Employment with the
Company by me for any reason, including expiration of the previously agreed upon
term of my Employment, or by the Company for or without Cause, I shall not, on
my own behalf, or as owner, manager, stockholder, consultant, director, officer
or employee of any business entity, take away any of the customers that the
Company had enjoyed during my Employment with the Company.
(c) For a period of one year after the termination of my Employment with the
Company by me for any reason, including expiration of the previously agreed upon
term of my Employment, or by the Company for or without Cause, I shall not
solicit, induce, attempt to hire, or hire any employee of the Company (or any
other person who may have been employed by the Company during the six months
prior to the termination of my Employment), or assist in such hiring by any
other person or business entity or encourage any such employee to terminate his
or her employment with the Company.
(d) I recognize that the Company is developing highly specialized products and
services in competition with the other business entities throughout the United
States and the world, which products and services are designed to compete in
regional, nation-wide and world-wide markets. In light of the competitive nature
of the Company's products and services, I agree that the restrictions contained
in this Section 1 cannot be limited to any geographic area.
2. CONFIDENTIALITY AGREEMENT
(a) I will not at any time, whether during or after the termination of my
Employment, reveal to any person or entity any of the Confidential Information
of the Company or of any third party which the Company is under an obligation to
keep confidential. The term "Confidential Information" as used throughout this
Agreement shall mean all trade secrets, proprietary information and other data
or information (and any tangible evidence, record or representation thereof),
whether prepared, conceived or developed by an employee of the Company
(including myself) or received by the Company from an outside source, which is
in the possession of the Company (whether or not the property of the Company),
which in any way relates to the present or future business of the Company or any
customer or supplier of the Company, and which is maintained in confidence by
the Company. Without limiting the generality of the foregoing, "Confidential
Information" shall mean all trade secrets, know-how, proprietary information and
other information or data relating to the present or future business of the
Company, including but not limited to:
(i) any idea, improvement, invention, innovation, development technical
data, design, formula, device, pattern, concept, computer program, software,
firmware, source code, object code, algorithm, subroutine, object module,
schematic, model, diagram, flow chart, chip masking specification, user manual,
training or service manual, product specification, plan for a new or revised
product, compilation of information, or work in process, and any and all
revisions and improvements relating to any of the foregoing (in each case
whether or not reduced to tangible form); and
(ii) the name of any customer, employee, prospective customer or
consultant, any sales plan, marketing material, plan or survey, business plan,
product or development plan or specification, business proposal, financial
record, or business record or other record or information relating to the
business of the Company.
Notwithstanding the foregoing, the term Confidential Information shall not apply
to information (i) which the Company has voluntarily disclosed to the public
without restriction, (ii) which has otherwise lawfully entered the public
domain, (iii) which the Company has permitted me to disclose by its prior
written consent; or (iv) which I may disclose at a forum, workshop or round
table conference with the prior knowledge of the Company.
(b) I further represent that my performance of all of the terms of this
Agreement and as an employee, consultant or advisor of the Company does not and
will not breach any agreement to keep in confidence Confidential Information
acquired by me prior to my Employment by the Company. I have not entered into,
and I agree I will not enter into, any agreement either written or oral in
conflict herewith.
(c) Further, I agree that during my Employment I shall not make, use or permit
to be used any notes, memoranda, reports, lists, records, drawings, sketches,
specifications, software programs, data, documentation or other materials of any
nature relating to any matter within the scope of the business of the Company or
concerning any of its dealings or affairs otherwise than for the benefit of the
Company. I further agree that I shall not, after the termination of my
Employment, use or permit to be used any such notes, memoranda, reports, lists,
records, drawings, sketches, specifications, software programs, data,
documentation or other materials, it being agreed that all of the foregoing
shall be and remain the sole and exclusive property of the Company and that
within ten (10) days after the termination of my Employment I shall either (i)
deliver all of the foregoing, and all copies thereof, to the Company, at its
main office or (ii) destroy all of the foregoing, and all copies thereof, and
deliver a sworn notice to the Company certifying to such destruction.
(d) The Company shall make adequate provision for the safekeeping of any notes,
memoranda, reports, lists, records, drawings, sketches, specifications, software
programs, data, documentation or other materials of any nature relating to any
matter within the scope of the business of the Company or concerning any of its
dealings or affairs, as requested by me upon notice to the Company given within
10 days after the termination of my Employment, and the Company shall provide me
with a notice setting forth that it has complied with such request.
3. DEVELOPMENTS AGREEMENT
(a) If at any time or times during my Employment, I shall (either alone or with
others) make, conceive, discover or reduce to practice any invention,
modification, discovery, design, development, improvement, process, software
program, work of authorship, documentation, formula, data, technique, know-how,
secret or any interest therein (whether or not patentable or registrable under
copyright or similar statutes or subject to analogous protection) (herein called
"Developments") that relate to the business of the Company or that relate to
software provided by suppliers to the Company and incorporated in the Company's
products, or any of the goods and services sold, licensed or under development
by the Company or result from the use of premises or personal property tangible
or intangible owned, leased or contracted for by the Company such Developments
and the benefits thereof shall immediately become the sole and absolute property
of the Company and its assigns, and I shall promptly disclose to the Company (or
any persons designated by it) each such Development and hereby assign any rights
I may have or acquire in the Developments and benefits and/or rights resulting
therefrom to the Company and its assigns without further compensation and shall
communicate, without cost or delay, and without publishing the same, all
available information relating thereto (with all necessary plans and models) to
the Company.
(b) Upon disclosure of each Development to the Company, I will, during my
Employment and at any time thereafter, at the request and cost of the Company,
sign, execute, make and do all such deeds, documents, acts and things as the
Company and its duly authorized agents may reasonably require:
(i) to apply for, obtain and vest in the name of the Company alone
(unless the Company otherwise directs) letters patent,
copyrights or other analogous protection in any country
throughout the world and when so obtained or vested to renew and
restore the same; and
(ii) to defend any opposition proceedings in respect of such
applications and any opposition proceedings or petitions or
applications for revocation of such letters patent, copyright or
other analogous protection.
In the event the Company is unable, after reasonable effort, to secure my
signature on any letters patent, copyright or other analogous protection
relating to a Development, whether because of my physical or mental incapacity
or for any other reason whatsoever, 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 application or applications and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent, copyright or other
analogous protection thereon with the same legal force and effect as if executed
by me.
(c) I understand that the Developments including, but not limited to, those
identified in the pages, if any, attached hereto, which I can demonstrate to the
satisfaction of the Company that I have made or conceived prior to my Employment
by the Company are excluded from this Agreement. I understand that it is only
necessary to list the title and purpose of such Developments but not details
thereof.
4. MISCELLANEOUS
(a) I understand that this Agreement does not create an obligation on the
Company or any other person or entity to continue my Employment.
(b) Any waiver by the Company of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any subsequent breach of such
provision or any other provision hereof.
(c) I hereby agree that each provision herein shall be treated as a separate and
independent clause, and the unenforceability of any one clause shall in no way
impair the enforceability of any of the other clauses herein. Moreover, if one
or more of the provisions contained in this Agreement shall for any reason be
held to be excessively broad as to scope, activity or subject so as to be
unenforceable at law, such provision or provisions shall be construed by the
appropriate judicial body by limiting and reducing it or them, so as to be
enforceable to the maximum extent compatible with the applicable law as it shall
then appear.
(d) I recognize that money damages alone would not adequately compensate the
Company in the event of breach by me of this Agreement, and I therefore agree
that, in addition to all other remedies available to the Company at law or in
equity, the Company shall be entitled to injunctive relief for the enforcement
hereof. Failure by the Company to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such
terms, covenants or conditions.
(e) My obligations under this Agreement shall survive the termination of my
employment.
(f) The term "Company" shall include Object Design, Inc. and any of its
subsidiaries, subdivisions or affiliates. The Company shall have the right to
assign this Agreement to its successor and assigns, and all covenant and
agreements hereunder shall inure to the benefit of and be enforceable by said
successors or assigns.
(g) This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts.
(h) This Agreement contains the entire and only agreement between me and the
Company respecting the subject matter hereof, and no modification, renewal,
extension, waiver or termination of this Agreement or any of the provisions
herein contained shall be binding upon me
or the Company unless made in writing and signed by an authorized officer of the
Company. In the event of any inconsistency between this Agreement and any other
contract between me and the Company, the provisions of this Agreement shall
prevail.
(i) Any notices to be given hereunder shall be in writing and shall be delivered
by hand, by registered, certified or overnight mail to the appropriate address
set forth below or to such other address as specified by notice.
(j) Any controversy or claim arising out of or relating to this Agreement, or
the breach thereof, shall be settled by arbitration in Boston, Massachusetts in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association, and judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof and shall be final and binding
upon the parties hereto. Notwithstanding anything to the contrary contained in
this Section 4(j), the Company shall have the right to seek injunctive relief,
specific performance or other equitable relief against me in a court of
competent jurisdiction.
BY PLACING MY SIGNATURE HEREUNDER, I ACKNOWLEDGE THAT I HAVE READ ALL OF THE
PROVISIONS OF THIS AGREEMENT AND THAT I AGREE TO ALL OF ITS TERMS.
____________________________
Signature
Address:
____________________________
____________________________
Date: ______________________
Accepted:
OBJECT DESIGN, INC.
00 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
By: _________________________
Title: _____________________
EXHIBIT E
CONTRACT OF EMPLOYMENT
by and between
OBJECT DESIGN, INC.
and
XXXX XXXXX
This Agreement is between Object Design, Inc. ("Company") and Xxxx Xxxxx
("Employee").
1. EMPLOYMENT
The Company agrees to employ Employee and Employee accepts such
employment, upon the terms and conditions hereinafter set forth, for a
period of twenty-four (24) months beginning on October 5, 1999 (the
"Initial Term"), and thereafter as an employee at will.
2. DUTIES
A. Employee shall be employed as a member of the Company's
Technical Staff and shall be responsible for modifying and
developing software and shall have such other duties and
responsibilities as the Board of Directors of the Company or
their designee(s) shall determine from time to time.
B. Employee agrees during the term of this Agreement to devote on a
full-time basis, his time, energy and ability to the business of
the Company.
3. COMPENSATION AND BENEFITS
A. Employee's gross annual salary shall be $75,000, payable
on a semi-monthly basis and subject to an annual review process.
In addition, subject to approval of the Board of Directors, the
Company agrees to grant Employee an option to purchase 83,500
shares of Common Stock pursuant to the Company's 1997
Nonqualified Stock Option Plan. Such options shall have an
exercise (purchase) price per share of one dollar ($1.00); shall
vest 50% at the end of each twelve-month period after the date
of the grant; and shall be converted, in accordance with the
Company's then-current policy, to "eXcelon Options" in the event
of a spin-off of the eXcelon division from the Company.
B. Upon commencement of the employment, Employee shall be entitled
to participate in the then current benefit programs offered by
the Company for which he is eligible. Such participation shall
be subject to the terms of the applicable plan documents and
Company policies. The Company reserves its right, in its sole
discretion, and as allowed by law, to modify, suspend or
discontinue any or all such benefits at any time without
recourse by the Employee.
C. Except to the extent the terms of any benefit programs or stock
option grants provide for the survival of rights or benefits,
upon death of Employee, all rights of Employee under this
Agreement shall terminate, with the exception of rights which
accrued prior to the date of death..
D. Employee shall be reimbursed for approved business expenses in
accordance with Company's then current travel and expense
policy.
4. NON-COMPETITION, NON-DISCLOSURE
Employee agrees to be bound by the Non-Competition, Non-Disclosure and
Developments Agreement incorporated herein by reference and attached
hereto as Appendix A.
5. TERMINATION
A. Termination for Cause. The Company shall have the right, at any
time, at its sole option and upon giving the required legal
notice, to terminate this Agreement for one or more of the
following occurrences ("Cause"):
1. conviction of the Employee or a plea of nolo contendere
for any felony or any other crime involving moral
turpitude;
2. willful misconduct, fraud, embezzlement, or other material
dishonesty on the part of Employee;
3. a material failure of the Employee to perform his duties
under Section 2 hereof (other than as a result of
documented physical or mental illness) which continues
after written demand for performance is delivered to the
Employee which demand specifically identifies the manner
in which it is alleged that the Employee has materially
failed to perform his duties;
4. material breach by the Employee of any provision of this
Agreement and attached Exhibit A which is not remedied
within thirty (30) days of receiving written notice of
such breach.
B. Other Termination. After the Initial Term, the Employee shall
be an employee at will and the Company shall have the right at
any time, at its option and upon giving the required legal
notice, to terminate this Agreement for any reason or no
reason.
6. EFFECT OF TERMINATION
A. If the Company terminates this Agreement for Cause at any
time or without Cause after the Initial Term, or the
Employee terminates this Agreement at any time for any
reason, then upon termination, the Employee's then current
benefits shall terminate in accordance with Company policy
or as required by law, except that the Company shall
remain obligated in respect to and will pay all such
salary and other benefits as may be accrued and unpaid on
the date of termination.
B. If Company terminates this Agreement without Cause during
the Initial Term, then the Employee's then current
benefits shall continue until the expiration of the
Initial Term in accordance with Company policy or as
required by law, and the Company shall remain obligated in
respect to and will pay all salary that Employee would
otherwise be entitled to receive hereunder until the
expiration of the Initial Term.
7. CONFLICTING AGREEMENTS
Employee hereby represents and warrants that the execution of this
Agreement and the performance of Employee's obligations hereunder will
not breach or be in conflict with any other agreement to which Employee
is a party or is bound and that Employee is not now subject to any
covenants against competition, covenants of confidentiality or similar
covenants with any person or entity other than the Company.
8. ENFORCEMENT OF COVENANTS
Employee acknowledges and agrees that, were Employee to breach any of
the covenants contained in Appendix A, the Non-Competition,
Non-Disclosure and Developments Agreement, the damage to the Company
may be irreparable, and that money damages alone may not be an adequate
remedy. Accordingly, Employee agrees that the Company and its assigns,
in addition to any other remedies available to them, shall be entitled
to seek preliminary and permanent injunctive relief against any breach
or threatened breach by Employee of any of said covenants, without
posting bond.
9. MISCELLANEOUS
A. Employee understands that this Agreement does not create an
obligation on the Company or any other person or entity to
continue to employ Employee beyond the Initial Term.
B. Any waiver by the Company of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any
subsequent breach of such provision or any other provision
hereof.
C. Employee hereby agrees that each provision herein shall be
treated as a separate and independent clause, and the
unenforceability of any one clause shall in no way impair the
enforceability of any of the other clauses herein. Moreover,
if one or more of the provisions contained in this Agreement
shall for any reason be held to be excessively broad as to
scope, activity or subject so as to be unenforceable at law,
such provision or provisions shall be construed by the
appropriate judicial body by limiting and reducing it or them,
so as to be enforceable to the maximum extent permitted by
applicable law.
D. This Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts,
without regards to its principles of conflicts of law.
E. Appendix A hereto is incorporated in and made a part of this
Agreement. This Agreement contains the entire and only
agreement between Employee and the Company respecting the
subject matter hereof, and no modification, renewal,
extension, waiver or termination of this Agreement or any of
the provisions herein contained shall be binding upon Employee
or the Company unless made in writing and signed by an
authorized officer of the Company.
F. Any notices to be given hereunder shall be in writing and
shall be delivered by hand, by registered, certified or
overnight mail to the appropriate address set forth below or
to such other address as specified by notice.
G. The term "Company" shall include Object Design, Inc. and any
of its subsidiaries, subdivisions or affiliates. The Company
shall have the right to assign this Agreement to its successor
and assigns, and all covenant and agreements hereunder shall
inure to the benefit of and be enforceable by said successors
or assigns.
BY PLACING MY SIGNATURE HEREUNDER, I ACKNOWLEDGE THAT I HAVE READ ALL OF THE
PROVISIONS OF THIS AGREEMENT AND THAT I AGREE TO ALL OF ITS TERMS.
SIGNATURE OF EMPLOYEE:_____________________________________________
ADDRESS:___________________________________________________________
DATE:______________________________________________________________
ACCEPTED BY OBJECT DESIGN, INC.
ADDRESS:___________________________________________________________
BY:__________________________________
NAME:________________________________
TITLE:_______________________________
DATE:________________________________
APPENDIX A
NON-COMPETITION, NON-DISCLOSURE
AND DEVELOPMENTS AGREEMENT
In consideration of my employment, consulting or advisory relationship
("Employment"), as the case may be, with Object Design, Inc., a Delaware
corporation with its principal place of business in Burlington, Massachusetts,
and in recognition of the fact that as a result of such relationship I will or
may have access to confidential information, I agree with the Company (as
defined below) as follows:
1. AGREEMENT NOT TO COMPETE WITH THE COMPANY
(a) As long as I am employed or retained by the Company and for a period of one
year after the termination of my Employment with the Company by me for any
reason, including expiration of the previously agreed upon term of my
Employment, or by the Company for or without Cause, as defined in my Employment
Agreement of even date, I shall not, on my behalf, or as owner, manager,
stockholder, consultant, director, officer or employee of any business entity,
participate in the development or provision of goods or services which are
competitive with goods or services sold or licensed, or under development, by
the Company without the prior written authorization of the Company; provided,
however, that I may, without the Company's prior written authorization, own (i)
up to one percent (1%) of the issued and outstanding securities of any publicly
held corporation or (ii) any securities in any non-public corporation which I
owned prior to the date of my Employment. In the event that the Company and I
disagree about whether any business entity develops or provides goods or
services which are competitive with goods or services sold or licensed, or under
development, by the Company at the date of termination, the disagreement shall
be resolved either (i) by decision of the Company's Board of Directors at their
next regularly scheduled board meeting acting in good faith after giving me a
suitable opportunity to present my view in person and/or in writing or (ii) if
either I or the Company gives notice to the Board of our objection to the
decision of the Board within 30 days after such decision, by arbitration as
provided herein. The Company and I agree that goods or services which are
competitive with goods or services sold or licensed, or under development, by
the Company shall not include goods and services used by any person or entity
(i) for such person or entity's non-public, in-house use, or (ii) for use as a
component in a good or service which is not competitive with goods or services
sold or licensed, or under development, by the Company.
If after the commencement of my Employment with the Company the Company
determines to change its line of business so as to provide goods or services
other than those sold or licensed, or under development, by the Company at the
commencement of my Employment, then the Company shall give me notice of such
determination.
(b) For a period of one year after the termination of my Employment with the
Company by me for any reason, including expiration of the previously agreed upon
term of my Employment, or by the Company for or without Cause, I shall not, on
my own behalf, or as owner, manager, stockholder, consultant, director, officer
or employee of any business entity, take away any of the customers that the
Company had enjoyed during my Employment with the Company.
(c) For a period of one year after the termination of my Employment with the
Company by me for any reason, including expiration of the previously agreed upon
term of my Employment, or by the Company for or without Cause, I shall not
solicit, induce, attempt to hire, or hire any employee of the Company (or any
other person who may have been employed by the Company during the six months
prior to the termination of my Employment), or assist in such hiring by any
other person or business entity or encourage any such employee to terminate his
or her employment with the Company.
(d) I recognize that the Company is developing highly specialized products and
services in competition with the other business entities throughout the United
States and the world, which products and services are designed to compete in
regional, nation-wide and world-wide markets. In light of the competitive nature
of the Company's products and services, I agree that the restrictions contained
in this Section 1 cannot be limited to any geographic area.
2. CONFIDENTIALITY AGREEMENT
(a) I will not at any time, whether during or after the termination of my
Employment, reveal to any person or entity any of the Confidential Information
of the Company or of any third party which the Company is under an obligation to
keep confidential. The term "Confidential Information" as used throughout this
Agreement shall mean all trade secrets, proprietary information and other data
or information (and any tangible evidence, record or representation thereof),
whether prepared, conceived or developed by an employee of the Company
(including myself) or received by the Company from an outside source, which is
in the possession of the Company (whether or not the property of the Company),
which in any way relates to the present or future business of the Company or any
customer or supplier of the Company, and which is maintained in confidence by
the Company. Without limiting the generality of the foregoing, "Confidential
Information" shall mean all trade secrets, know-how, proprietary information and
other information or data relating to the present or future business of the
Company, including but not limited to:
(i) any idea, improvement, invention, innovation, development technical
data, design, formula, device, pattern, concept, computer program, software,
firmware, source code, object code, algorithm, subroutine, object module,
schematic, model, diagram, flow chart, chip masking specification, user manual,
training or service manual, product specification, plan for a new or revised
product, compilation of information, or work in process, and any and all
revisions and improvements relating to any of the foregoing (in each case
whether or not reduced to tangible form); and
(ii) the name of any customer, employee, prospective customer or
consultant, any sales plan, marketing material, plan or survey, business plan,
product or development plan or specification, business proposal, financial
record, or business record or other record or information relating to the
business of the Company.
Notwithstanding the foregoing, the term Confidential Information shall not apply
to information (i) which the Company has voluntarily disclosed to the public
without restriction, (ii) which has otherwise lawfully entered the public
domain, (iii) which the Company has permitted me to disclose by its prior
written consent; or (iv) which I may disclose at a forum, workshop or round
table conference with the prior knowledge of the Company.
(b) I further represent that my performance of all of the terms of this
Agreement and as an employee, consultant or advisor of the Company does not and
will not breach any agreement to keep in confidence Confidential Information
acquired by me prior to my Employment by the Company. I have not entered into,
and I agree I will not enter into, any agreement either written or oral in
conflict herewith.
(c) Further, I agree that during my Employment I shall not make, use or permit
to be used any notes, memoranda, reports, lists, records, drawings, sketches,
specifications, software
programs, data, documentation or other materials of any nature relating to any
matter within the scope of the business of the Company or concerning any of its
dealings or affairs otherwise than for the benefit of the Company. I further
agree that I shall not, after the termination of my Employment, use or permit to
be used any such notes, memoranda, reports, lists, records, drawings, sketches,
specifications, software programs, data, documentation or other materials, it
being agreed that all of the foregoing shall be and remain the sole and
exclusive property of the Company and that within ten (10) days after the
termination of my Employment I shall either (i) deliver all of the foregoing,
and all copies thereof, to the Company, at its main office or (ii) destroy all
of the foregoing, and all copies thereof, and deliver a sworn notice to the
Company certifying to such destruction.
(d) The Company shall make adequate provision for the safekeeping of any notes,
memoranda, reports, lists, records, drawings, sketches, specifications, software
programs, data, documentation or other materials of any nature relating to any
matter within the scope of the business of the Company or concerning any of its
dealings or affairs, as requested by me upon notice to the Company given within
10 days after the termination of my Employment, and the Company shall provide me
with a notice setting forth that it has complied with such request.
3. DEVELOPMENTS AGREEMENT
(a) If at any time or times during my Employment, I shall (either alone or with
others) make, conceive, discover or reduce to practice any invention,
modification, discovery, design, development, improvement, process, software
program, work of authorship, documentation, formula, data, technique, know-how,
secret or any interest therein (whether or not patentable or registrable under
copyright or similar statutes or subject to analogous protection) (herein called
"Developments") that relate to the business of the Company or that relate to
software provided by suppliers to the Company and incorporated in the Company's
products, or any of the goods and services sold, licensed or under development
by the Company or result from the use of premises or personal property tangible
or intangible owned, leased or contracted for by the Company such Developments
and the benefits thereof shall immediately become the sole and absolute property
of the Company and its assigns, and I shall promptly disclose to the Company (or
any persons designated by it) each such Development and hereby assign any rights
I may have or acquire in the Developments and benefits and/or rights resulting
therefrom to the Company and its assigns without further compensation and shall
communicate, without cost or delay, and without publishing the same, all
available information relating thereto (with all necessary plans and models) to
the Company.
(b) Upon disclosure of each Development to the Company, I will, during my
Employment and at any time thereafter, at the request and cost of the Company,
sign, execute, make and do all such deeds, documents, acts and things as the
Company and its duly authorized agents may reasonably require:
(i) to apply for, obtain and vest in the name of the Company alone
(unless the Company otherwise directs) letters patent,
copyrights or other analogous protection in any country
throughout the world and when so obtained or vested to renew and
restore the same; and
(ii) to defend any opposition proceedings in respect of such
applications and any opposition proceedings or petitions or
applications for revocation of such letters patent, copyright or
other analogous protection.
In the event the Company is unable, after reasonable effort, to secure my
signature on any letters patent, copyright or other analogous protection
relating to a Development, whether because of my physical or mental incapacity
or for any other reason whatsoever, 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 application or applications and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent, copyright or other
analogous protection thereon with the same legal force and effect as if executed
by me.
(c) I understand that the Developments including, but not limited to, those
identified in the pages, if any, attached hereto, which I can demonstrate to the
satisfaction of the Company that I have made or conceived prior to my Employment
by the Company are excluded from this Agreement. I understand that it is only
necessary to list the title and purpose of such Developments but not details
thereof.
4. MISCELLANEOUS
(a) I understand that this Agreement does not create an obligation on the
Company or any other person or entity to continue my Employment.
(b) Any waiver by the Company of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any subsequent breach of such
provision or any other provision hereof.
(c) I hereby agree that each provision herein shall be treated as a separate and
independent clause, and the unenforceability of any one clause shall in no way
impair the enforceability of any of the other clauses herein. Moreover, if one
or more of the provisions contained in this Agreement shall for any reason be
held to be excessively broad as to scope, activity or subject so as to be
unenforceable at law, such provision or provisions shall be construed by the
appropriate judicial body by limiting and reducing it or them, so as to be
enforceable to the maximum extent compatible with the applicable law as it shall
then appear.
(d) I recognize that money damages alone would not adequately compensate the
Company in the event of breach by me of this Agreement, and I therefore agree
that, in addition to all other remedies available to the Company at law or in
equity, the Company shall be entitled to injunctive relief for the enforcement
hereof. Failure by the Company to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such
terms, covenants or conditions.
(e) My obligations under this Agreement shall survive the termination of my
employment.
(f) The term "Company" shall include Object Design, Inc. and any of its
subsidiaries, subdivisions or affiliates. The Company shall have the right to
assign this Agreement to its successor and assigns, and all covenant and
agreements hereunder shall inure to the benefit of and be enforceable by said
successors or assigns.
(g) This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts.
(h) This Agreement contains the entire and only agreement between me and the
Company respecting the subject matter hereof, and no modification, renewal,
extension, waiver or termination of this Agreement or any of the provisions
herein contained shall be binding upon me
or the Company unless made in writing and signed by an authorized officer of the
Company. In the event of any inconsistency between this Agreement and any other
contract between me and the Company, the provisions of this Agreement shall
prevail.
(i) Any notices to be given hereunder shall be in writing and shall be delivered
by hand, by registered, certified or overnight mail to the appropriate address
set forth below or to such other address as specified by notice.
(j) Any controversy or claim arising out of or relating to this Agreement, or
the breach thereof, shall be settled by arbitration in Boston, Massachusetts in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association, and judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof and shall be final and binding
upon the parties hereto. Notwithstanding anything to the contrary contained in
this Section 4(j), the Company shall have the right to seek injunctive relief,
specific performance or other equitable relief against me in a court of
competent jurisdiction.
BY PLACING MY SIGNATURE HEREUNDER, I ACKNOWLEDGE THAT I HAVE READ ALL OF THE
PROVISIONS OF THIS AGREEMENT AND THAT I AGREE TO ALL OF ITS TERMS.
____________________________
Signature
Address:
____________________________
____________________________
Date: ______________________
Accepted:
OBJECT DESIGN, INC.
00 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
By: ________________________
Title: ____________________
EXHIBIT F
AGREEMENTS
NONE.
EXHIBIT G
INTELLECTUAL PROPERTY
The copyright to the Software, which copyright is not registered.
The trademark "Transformis(TM)", which trademark is not registered.
The trademark "Stylus XSL Development Tool(TM)", which trademark is not
registered.
