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EXHIBIT 10.26
WEBSIDESTORY, INC., CONFIDENTIALITY AGREEMENT AND TERMS OF EMPLOYMENT
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT DESCRIBES THE BASIC LEGAL
AND ETHICAL RESPONSIBILITIES THAT YOU ARE REQUIRED TO OBSERVE AS AN EMPLOYEE
EXPOSED TO HIGHLY SENSITIVE TECHNOLOGY AND STRATEGIC INFORMATION IN PERFORMING
RESEARCH AND DEVELOPMENT. WEBSIDESTORY'S RELATIONSHIP WITH ITS EMPLOYEES IS
BASED ON TRUST, AND EACH INDIVIDUAL WHO WORKS FOR WEBSIDESTORY IS EXPECTED TO
MAINTAIN A HIGH DEGREE OF PROFESSIONALISM. WE ARE IN A HIGHLY COMPETITIVE
BUSINESS AND WE WANT TO SUCCEED BY THE RULES, FAIR AND SQUARE.
THIS AGREEMENT, is effective as of the date shown on the signature line:
EMPLOYMENT Some of the conditions of your employment with WebSideStory, Inc.
(referred to in this agreement as "WebSideStory," the "Company," or "we") are on
the exhibit attached to this Agreement.
IF YOU KNOW OF ANY OBLIGATIONS THAT MAY CONFLICT WITH YOUR WORK FOR US, PLEASE
LET US KNOW AS SOON AS POSSIBLE.
NONINTERFERENCE WITH THIRD-PARTY RIGHTS The Company is employing you with the
understanding that (1) you are free to enter into employment with WebSideStory
and (2) only WebSideStory is entitled to the benefit of your work. WebSideStory
has no interest in using any other person's patents, copyrights, trade secrets,
or trademarks in an unlawful manner. You should be careful not to misapply
proprietary rights that WebSideStory has no right to use.
PLEASE OBSERVE THE TERMS OF THIS AGREEMENT, IT IS IMPORTANT.
CONTINUANCE OF EMPLOYMENT The faithful observance of this Agreement by you is,
and will remain, a condition of your employment. Also, your employment is
terminable at will by either you or WebSideStory at any time. WebSideStory asks
that as courtesy, you give at least two weeks' notice in advance of any
termination by you of your employment. WebSideStory reserves the absolute right
to make any changes in assignment, personnel, or employee benefits at any time.
WEBSIDESTORY'S CONFIDENTIAL INFORMATION AND WHATEVER YOU CREATE WHILE WORKING
FOR WEBSIDESTORY, IS OWNED BY WEBSIDESTORY. IN PART, THAT IS WHAT WE ARE PAYING
FOR.
EXISTING PROPRIETARY RIGHTS We are not aware of any patents, patent
applications, copyrights, trade secrets, or trademarks that you own, or have any
claim in. (If there are any, list them here).
OWNERSHIP OF WORK PRODUCT
a. WebSideStory will own all Work Product (as defined in this Agreement ). All
Work Product will be considered work made for hire by you and owned by
WebSideStory.
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b. If any of the Work Product may not, by operation of law, be considered work
made for hire by you for WebSideStory, or if ownership of all right, title, and
interest of the intellectual property rights therein will not otherwise vest
exclusively in WebSideStory, you agree to assign, and upon creation thereof
automatically assign, without further consideration, the ownership of all Trade
Secrets as defined in this Agreement, U.S. and international copyrights,
patentable inventions, and other intellectual property rights therein to
WebSideStory, its successors, and assigns.
c. WebSideStory, its successors, and assigns, will have the right to obtain and
hold in its or their own name copyrights, registrations, and any other
protection available in the foregoing.
d. You agree to perform, upon the reasonable request of WebSideStory, during or
after your employment, such further acts as may be necessary or desirable to
transfer, perfect, and defend WebSideStory's ownership of the Work Product. When
requested, you will:
1. execute, acknowledge, and deliver any requested affidavits and documents of
assignment and conveyance;
2. obtain and aid in the enforcement of copyrights and, if applicable, patents
with respect to the Work Product in any countries;
3. provide testimony in connection with any proceeding affecting the right,
title, or interest of WebSideStory in any Work Product; and
4. perform any other acts as necessary or desirable to carry out the purposes of
this Agreement.
WebSideStory will reimburse all reasonable out-of-pocket expense, incurred by
you at WebSideStory's request, in connection with the above, including (unless
you are otherwise being compensated at the time) a reasonable per diem or hourly
fee for services rendered following termination of your employment.
e. In this Agreement, "Work Product" means all intellectual property rights,
including all confidential information, confidential documents, trade secrets,
works of copyrightable authorship, U.S. and international copyrights, patentable
inventions, US and foreign letters patent, discoveries and improvements, all
trademarks and other intellectual property rights, in any programming,
documentation, technology relating to the business and interests of
WebSideStory, including any such technology that you conceive, develop, or
deliver to WebSideStory at any time during the term of your employment. Work
Product also includes all intellectual property rights in any programming,
documentation, technology, or other work product that is now contained in any of
the products or systems, including development and support systems, of
WebSideStory to the extent you conceived, developed, or delivered such Work
Product to WebSideStory prior to the date of this Agreement while you were
engaged as an independent contractor or an employee of WebSideStory. You
irrevocably give up, for the benefit of WebSideStory and its assigns, any moral
rights in the any works of copyrightable authorship recognized by applicable
law.
EXCEPTIONS Except as set forth above, WebSideStory will not make claim to any
invention for which no equipment, supplies, facilities, or WebSideStory
confidential information was used, which was developed entirely on your own
time, and which does not (i) relate to the business of WebSideStory (ii) relate
to WebSideStory's actual or demonstrable anticipated research or development, or
(iii) result from any work performed by you for Employer.
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YOU AGREE TO KEEP WEBSIDESTORY CONFIDENTIAL INFORMATION IN STRICT CONFIDENCE.
WEBSIDESTORY CONFIDENTIALITY Your position with WebSideStory requires
considerable responsibility and trust. Relying on your ethical responsibility
and undivided loyalty, WebSideStory expects to entrust you with highly sensitive
confidential, restricted, and proprietary information involving Trade Secrets
(as defined below). It could prove very difficult to isolate these Trade Secrets
from business activities that you might consider pursuing after termination of
your employment, and in some instances, you may not be able to compete with
WebSideStory in certain ways because of the risk that WebSideStory's Trade
Secrets might be compromised. You are legally and ethically responsible for
protecting and preserving WebSideStory's proprietary rights for use only for
WebSideStory's benefit, and these responsibilities may impose unavoidable
limitations on your ability to pursue some kinds of business opportunities that
might interest you during or after your employment.
TRADE SECRETS DEFINED For purposes of this Agreement, a "Trade Secret" is any
information, including, but not limited to, technical or non-technical data,
formulas, patterns, compilations, programs, devices, methods, techniques,
drawings, processes, financial data, employee salaries, financial plans, product
plans, or lists of actual or potential customers or suppliers that: (1) derive
economic value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can obtain
economic value from their disclosure or use; and (2) are the subject of efforts
that are reasonable under the circumstances to maintain their secrecy.
RESTRICTIONS ON USE AND DISCLOSURE OF TRADE SECRETS You agree not to use or
disclose any Trade Secrets of WebSideStory during your employment and for so
long afterwards as the pertinent information or data remain Trade Secrets,
regardless of whether the Trade Secrets are in written or tangible form, except
as required to perform any duties for WebSideStory.
SCREENING OF PUBLIC RELEASES OF INFORMATION In addition, and without any
intention of limiting your other obligations under this Agreement in any way,
you should not, during your employment, reveal any non-public information
concerning the technology pertaining to the proprietary products and
manufacturing processes of WebSideStory (particularly technology under current
development or improvement), unless you have obtained written approval from
WebSideStory in advance. In that connection, you should submit to WebSideStory
for review any proposed scientific and technical articles and the text of any
public speeches relating to work done for WebSideStory before they are released
or delivered. WebSideStory has the right to disapprove and prohibit, or delete
any parts of such articles or speeches that might disclose WebSideStory's Trade
Secrets or other confidential information or otherwise be contrary to
WebSideStory's business interests.
UPON YOUR TERMINATION OF EMPLOYMENT WITH WEBSIDESTORY, YOU AGREE TO TURN OVER
ALL NOTES, DATA, DISKETTES, TAPES, REFERENCE ITEMS, SKETCHES OR DRAWINGS,
MEMORANDA, RECORDS, AND THE MATERIALS IN YOUR POSSESSION OR CONTROL WHICH IN ANY
WAY RELATE TO ANY WEBSIDESTORY CONFIDENTIAL INFORMATION.
RETURN OF MATERIALS At the request of WebSideStory and, in any event, upon the
termination of your employment, you must return to WebSideStory and leave at its
disposal all memoranda, notes, records, drawings, manuals, computer programs,
documentation, diskettes, computer tapes, and other documents or media
pertaining to the business of WebSideStory or your specific duties for
WebSideStory, including all copies of such materials. You must also return to
WebSideStory and leave at its disposal all materials involving
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any Trade Secrets of WebSideStory. This Section is intended to apply to all
materials made or compiled by you, as well as to all materials furnished to you
by anyone else in connection with your employment. YOU ARE OBLIGATED TO CONTINUE
TO PROTECT WEBSIDESTORY'S CONFIDENTIAL INFORMATION, AFTER YOU LEAVE OUR
EMPLOYMENT.
UNFAIR COMPETITION Employee acknowledges and agrees that the sale or
unauthorized use or disclosure of any of WebSideStory's trade secrets obtained
by Employee during the course of his engagement, including information
concerning WebSideStory's current or any future and proposed work, series or
products, the facts that any such work services, or products are planned, under
consideration, or in production, as well as any descriptions thereof, constitute
unfair competition. Employee promises and agrees not to engage in any unfair
competition with WebSideStory, either during the term of his engagement or at
any time thereafter.
HIRING EMPLOYEES You agree, for a period ending one year after the termination
of your employment with WebSideStory, not to hire or engage, or attempt to hire
or engage, directly or indirectly, any individual who was an employee of
WebSideStory at any time during the one-year period prior to the date of your
termination of employment with WebSideStory, whether for or on behalf of you or
for any entity in which you have a direct or indirect interest, whether as a
proprietor, partner, stockholder, employee, agent, representative, or
otherwise.
IF ANY PART OF THIS AGREEMENT IS NOT LEGAL, THE OTHER LEGAL PARTS WILL REMAIN IN
FORCE.
SEVERABILITY The covenants in this Agreement will be construed as covenants
independent of one another and as obligations distinct from any other contract
between you and WebSideStory. Any claim that you may have against WebSideStory
will not constitute a defense to enforcement by WebSideStory of this Agreement.
SOME OF YOUR OBLIGATIONS WILL SURVIVE THE TERMINATION OF YOUR EMPLOYMENT WITH
WEBSIDESTORY.
SURVIVAL OF OBLIGATIONS The covenants in this Agreement concerning work product,
trade secrets, confidential information, unfair competition and hiring employees
will survive termination of your employment, regardless of who causes the
termination and under what circumstances.
WEBSIDESTORY WILL BE IRREPARABLY HARMED IF YOU BREACH WEBSIDESTORY
CONFIDENTIALITY OR TAKE TRADE SECRETS. TO PROTECT OURSELVES, WE MUST BE ABLE TO
STOP ANY EMPLOYEE IMMEDIATELY WHO MISAPPROPRIATES WEBSIDESTORY CONFIDENTIAL
INFORMATION OR TRADE SECRETS.
SPECIFIC PERFORMANCE AND CONSENT TO INJUNCTIVE RELIEF Irreparable harm will be
presumed if you breach any covenant in this Agreement. The faithful observance
of all covenants in this Agreement is an essential condition to your employment,
and WebSideStory is depending upon absolute compliance. Damages would probably
be very difficult to ascertain if you breached any covenant in this Agreement.
This Agreement is intended to protect the proprietary rights of WebSideStory in
many important ways. Even the threat of any misuse of the technology of
WebSideStory would be extremely harmful, since that technology is essential to
the business of WebSideStory. In light of these facts, you agree that any court
of competent jurisdiction should immediately enjoin any breach of this Agreement
upon the request of WebSideStory. Also, you specifically release WebSideStory
from the requirement of posting any bond in connection with temporary or
interlocutory injunctive relief, to the extent permitted by law.
HOW YOU RECEIVE NOTICES RELATING TO THIS AGREEMENT.
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NOTICES All notices required under this Agreement will be made in writing and
will be deemed given when (1) delivered in person, (2) deposited in the U.S.
mail, first class, with proper postage prepaid and properly addressed, or (3)
sent through the interoffice delivery service of WebSideStory, if you are still
employed by WebSideStory at the time.
THIS AGREEMENT APPLIES TO ALL WEBSIDESTORY RELATED PARTIES.
RELATED PARTIES This Agreement will inure to the benefit of, and be binding
upon, WebSideStory and its subsidiaries and its affiliates, together with their
successors and assigns, and you, together with your executor, administrator,
personal representative, heirs, and legatees.
THIS AGREEMENT REFLECTS THE TERMS OF YOUR EMPLOYMENT WITH WEBSIDESTORY. THE
TERMS OF ANY PRIOR LETTERS, NEGOTIATIONS, OR UNDERSTANDINGS THAT CONTRADICT ANY
PROVISION OF THIS AGREEMENT ARE UNENFORCEABLE.
MERGER This Agreement merges and supersedes all prior and contemporaneous
agreements, undertakings, covenants, or conditions, whether oral or written,
express or implied, to the extent that they contradict or conflict with the
terms and conditions hereof. This Agreement is not intended to modify or impair
the effectiveness of the general rules and policies WebSideStory may announce
from time to time.
ARBITRATION The parties agree that they will submit any dispute that arises
under this Agreement to arbitration in San Diego County, California. The parties
hereby agree to use a third party neutral referred by American Arbitration
Association who will conduct the arbitration under the American Arbitration
Association rules for Arbitration. The cost of the arbitration will be shared
equally by both parties.
CHOICE OF LAW This Agreement will be governed by and enforced under the laws of
the State of California, in San Diego County.
IN WITNESS WHEREOF, you, as an employee of WebSideStory, have entered and
executed this Agreement under seal, and WebSideStory has accepted your
undertaking.
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I HAVE CAREFULLY READ AND CONSIDERED THE PROVISIONS OF THIS AGREEMENT. I
UNDERSTAND AND ACKNOWLEDGE THAT THE TERMS AND CONDITIONS ARE FAIR AND APPEAR
REASONABLY REQUIRED FOR THE PROTECTION OF WEBSIDESTORY AND ITS BUSINESS.
EMPLOYEE:
/s/ XXXXXXX XXXXXXX
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NAME: Xxxxxxx Xxxxxxx
Date: April 25, 2000
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SOCIAL SECURITY NO: ___ - __ - ___
DRIVER'S LICENSE NO: ________________ STATE: ____
ADDRESS:
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ACCEPTED:
WEBSIDESTORY INC.:
/s/ XXXXXXX XXXXXXXXX
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Xxxxxxx Xxxxxxxxx, Senior Vice President
Date: April 25, 2000
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WEBSIDESTORY, INC., CONFIDENTIALITY AGREEMENT AND TERMS OF EMPLOYMENT
EXHIBIT A
A1. SALARY
Employee will be paid an annual salary of $170,000.00. Employee's
salary will be paid in equal installments at regular payroll periods
(every two weeks). Employee's salary will be reviewed periodically by
the president of WebSideStory and may be adjusted from time to time at
his sole discretion.
A2. DUTIES
Employee will serve as general counsel and chief privacy officer.
Employee's duties may be reasonably modified at WebSideStory's
discretion. Employee will be under the management of the president of
the company. Employee will diligently execute his or her duties and
will devote substantially all of his or her time, skill, and effort
during ordinary working hours to such duties.
A3. DEDUCTIONS
WebSideStory will deduct from any compensation payable to Employee the
sums that it is required by law to deduct, including but not limited to
federal and state withholding taxes, social security taxes and state
disability insurance.
A4. BENEFITS
Medical coverage is a benefit that WebSideStory provides for its
employees alone; spouses are excluded from coverage. At your own cost,
however, we do give you the option to include your spouse in the
medical and/or dental plan offered. Since WebSideStory is billed for
the spouse premium, we will in turn deduct the premium from your
paycheck. Employee will be entitled to medical coverage after a period
of 30 days.
A5. VACATION, ILLNESS, AND HOLIDAYS
Employee will be entitled each year to vacation time at full pay in
accordance with WebSideStory's vacation policy.
A6. START DATE
Employee's first day of employment is/was April 10, 2000.
A7. STOCK OPTIONS, SEVERANCE
On or promptly after Employee's first day of employment is, the Company
will grant to Employee options to purchase up to $400,000 shares of the
Company's common stock (the OPTIONS) pursuant to the Company's 2000
Equity Incentive Plan. This option grant is subject to the terms and
conditions of a stock option agreement and to applicable state and
federal laws including tax and securities laws. The Options will vest
only as long as Employee is continuously employed by the Company as
follows:
1 50,000 will vest on the six-month anniversary of the date of
grant;
2 the remaining Options will vest monthly at the rate of 8,333 for
each full month of Employee's continuous service from the
six-month anniversary of the date of grant until the fourth
anniversary of the date of grant;
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3 on the fourth anniversary of the date of grant, the remaining
8,349 unvested Options will vest;
4 if the continuous service of Employee is terminated without Cause
subsequent to a Change in Control, then the Company will pay
Employee a severance payment of $85,000.00, and fifty percent
(50%) of the total number of unvested shares shall immediately
vest. For this purpose, Change in Control means: (i) a
dissolution or liquidation of the Company; (ii) a sale of all or
a majority of the assets of the Company; (iii) a merger or
consolidation in which the Company is not the surviving
corporation and in which beneficial ownership of securities of
the Company representing at least fifty percent (50%) of the
combined voting power entitled to vote in the election of
directors has changed; (iv) a reverse merger in which the Company
is the surviving corporation but the shares of Common Stock
outstanding immediately preceding the merger are converted by
virtue of the merger into other property, whether in the form of
securities, cash or otherwise, and in which beneficial ownership
of securities of the Company representing at least fifty percent
(50%) of the combined voting power entitled to vote in the
election of directors has changed; or (v) an acquisition by any
person, entity or group within the meaning of Section 13(d) or
14(d) of the Exchange Act, or any comparable successor provisions
(excluding any employee benefit plan, or related trust, sponsored
or maintained by the Company or subsidiary of the Company or
other entity controlled by the Company) of the beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act, or comparable successor rule) of securities of the
Company representing at least fifty percent (50%) of the combined
voting power entitled to vote in the election of directors. For
this purpose only, Cause means the occurrence of any of the
following (and only the following): (i) your conviction of any
felony involving fraud or act of dishonesty against the Company
or its affiliates; (ii) conduct by you which, based upon good
faith and reasonable factual investigation and determination of
the Company (or, if you are an officer, of the board of directors
of the Company), demonstrates gross unfitness to serve; or (iii)
your intentional, material violation of any statutory or
fiduciary duty that you have to the Company or its Affiliates. In
addition, if you are not an officer, Cause also shall include
your poor performance of services for the Company or its
Affiliates as determined by the Company following (A) written
notice to you describing the nature of such deficiency and (b)
your failure to cure such deficiency within thirty (30) days
following receipt of the such written notice.
