Exhibit 10.21
ESPS, Inc.
Employment Agreement
To Xxxxxx Xxxxxx:
This Agreement establishes the terms of your employment with ESPS, Inc., a
Delaware corporation (the "Company").
Employment and Duties You and the Company agree to your employment as Vice
President, Human Assets & Facilities on the terms
contained herein. You agree to perform whatever duties
the Company's Board of Directors (the "Board") or
person the Board or the Company's Chief Executive
Officer specifies as your direct report (the "Direct
Report") may assign you from time to time that are
reasonably consistent with your position as Vice
President, Human Assets & Facilities. During your
employment, you agree to devote your full business
time, attention, and energies to performing those
duties (except as your Direct Report otherwise agrees
from time to time). You agree to comply with the
noncompetition, secrecy, and other provisions of
Exhibit A to this Agreement.
Term of Employment Your employment under this Agreement begins as of your
execution of this Agreement (the "Effective Date").
Unless sooner terminated under this Agreement, your
employment ends at 6:00 p.m. Eastern Time on the second
anniversary of the Effective Date.
The period running from the Effective Date to the
second anniversary of the Effective Date in the
preceding sentence is the "Term."
Termination or expiration of this Agreement ends your
employment but does not end your obligation to comply
with Exhibit A or the Company's obligation, if any, to
make payments
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under the Payments on Termination and Severance
provisions as specified below.
Compensation
Salary The Company will pay you an annual salary (the
"Salary") from the Effective Date at the rate of not
less than $127,308 in accordance with its generally
applicable payroll practices. The Board or your
Direct Report will review your Salary annually and
consider you for increases.
Bonus You will be eligible for an annual bonus equal to up
to 35% of your Salary. The Board or your Direct
Report will review your bonus annually and consider
you for increases. This bonus will be calculated
according to annual incentive plan formulas adopted
on an annual basis by the Company. It is the
Company's good faith intention to provide formulas
for future fiscal years within 90 days of the
commencement of such fiscal year.
Car Allowance You will receive a car allowance equal to $500 per
month.
Relocation Expenses In the event the Company relocates your principal
place of business in excess of 25 miles, but not more
than 50 miles from Fort Washington, Pennsylvania, the
Company will reimburse you for reasonable and
necessary relocation expenses, not to exceed $15,000.
Vacation You will be eligible for five weeks vacation per
annum. In addition, you will be eligible for personal
days and sick days the Company makes generally
available from time to time to the Company's
employees, as those benefits are amended or
terminated from time to time.
Employee Benefits While the Company employs you under this Agreement,
the Company will provide you with the same benefits
as it makes generally available from time to time to
the Company's employees, as those benefits are
amended or terminated from time to time. Your
participation in the Company's benefit plans
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will be subject to the terms of the applicable plan
documents and the Company's generally applied
policies, and the Company in its sole discretion may
from time to time adopt, modify, interpret, or
discontinue such plans or policies. It is the
Company's good faith intention to provide information
on additional executive benefits, if any, within 90
days of the execution of this agreement.
Place of Employment Your principal place of employment will be within 50
miles of Fort Washington, Pennsylvania.
Expenses The Company will reimburse you for reasonable and
necessary travel and other business-related expenses
you incur for the Company in performing your duties
under this Agreement. You must itemize and
substantiate all requests for reimbursements. You
must submit requests for reimbursement in accordance
with the policies and practices of the Company.
No Other Employment While the Company employs you, you agree that you
will not, directly or indirectly, provide services to
any person or organization for which you receive
compensation or otherwise engage in activities that
would conflict or interfere significantly with your
faithful performance of your duties as an employee
without the Board's prior written consent. (This
prohibition excludes any work performed at the
Company's direction.) You may manage your personal
investments, as long as the management takes only
minimal amounts of time and is consistent with the
provisions of the No Conflicts of Interest Section
and the No Competition Section in Exhibit A.
You represent to the Company that you are not subject
to any agreement, commitment, or policy of any third
party that would prevent you from entering into or
performing your duties under this Agreement, and you
agree that you will not enter into any agreement or
commitment or agree to any policy that would prevent
or hinder your performance of duties and obligations
under this Agreement, including Exhibit A.
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No Conflicts of Interest You confirm that you have fully disclosed to the
Company, to the best of your knowledge, all
circumstances under which you, your spouse, and other
persons who reside in your household have or may have
a conflict of interest with the Company. You further
agree to fully disclose to the Company any such
circumstances that might arise during your employment
upon your becoming aware of such circumstances. You
agree to fully comply with the Company's policy and
practices relating to conflicts of interest.
No Improper You will neither pay nor permit payment of any
remuneration to
or
Payments on behalf of any governmental official other than
payments required or permitted by applicable law. You
will comply fully with the Foreign Corrupt Practices
Act of 1977, as amended. You will not, directly or
indirectly,
make or permit any contribution, gift, bribe,
rebate, payoff, influence payment, kickback, or
other payment to any person or entity, private
or public, regardless of what form, whether in
money, property, or services
to obtain favorable treatment for business
secured,
to pay for favorable treatment for business
secured,
to obtain special concessions or for
special concessions already obtained, or
in violation of any legal requirement, or
establish or maintain any fund or asset related
to the Company that is not recorded in the
Company's books and records, or
take any action that would violate (or would be
part of a series of actions that would violate)
any U.S. law relating to international trade or
commerce, including those laws
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relating to trading with the enemy, export
control, and boycotts of Israel or Israeli
products (as is sought by certain Arab
countries).
Termination Subject to the provisions of this section, you and the Company
agree that it may terminate your employment, or you may resign,
except that, if you voluntarily resign, you must provide the
Company with 90 days' prior written notice (unless the Board or
your Direct Report has previously waived such notice in writing
or authorized a shorter notice period).
For Cause The Company may terminate your employment for "Cause" if you:
(i) commit a material breach of your obligations or
agreements under this Agreement, including Exhibit A;
(ii) commit an act of gross negligence with respect to
the Company or otherwise act with willful disregard for
the Company's best interests, or materially violate the
Company's business practices and policies as set forth
in its Employee Handbook;
(iii) fail or refuse to perform any duties delegated
to you that are reasonably consistent with the duties
of similarly-situated senior executives or are
otherwise required under this Agreement, provided that
these duties do not conflict with any other provision
of this Agreement;
(iv) seize a corporate opportunity for yourself
instead of offering such opportunity to the Company if
within the scope of the Company's or its subsidiaries'
business; or
(v) are convicted of or plead guilty or no contest to
a felony (or to a felony charge reduced to
misdemeanor), or, with respect to your employment,
commit either a
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material dishonest act or common law fraud or knowingly
violate any federal or state securities or tax laws.
Your termination for Cause will be effective immediately
upon the Company's mailing or written transmission of notice
of such termination. Before terminating your employment for
Cause under clauses (i) - (iv) above, the Company will
specify in writing to you the nature of the act, omission,
refusal, or failure that it deems to constitute Cause and,
unless the Board or your Direct Report reasonably concludes
the situation could not be corrected, give you 30 days after
you receive such notice to correct the situation (and thus
avoid termination for Cause), unless the Company agrees to
extend the time for correction. You agree that the Board or
your Direct Report will have the discretion to determine in
good faith whether your correction is sufficient, provided
that this decision does not foreclose you from using the
Dispute Resolution provisions of Exhibit B.
Without Cause Subject to the provisions below under Payments on
Termination and Severance, the Company may terminate your
employment under this Agreement before the end of the Term
without Cause.
Disability If you become "disabled" (as defined below), the Company may
terminate your employment. You are "disabled" if you are
unable, despite whatever reasonable accommodations the law
requires, to render services to the Company because of
mental disability, incapacity, or illness, for more than the
sum of:
a) 90 consecutive days,
b) the number of earned but unused vacation days (see
the Vacation paragraph of this Agreement for the
number of vacation days available per year), and
c) the number of earned but unused personal and sick
days generally available from time to time to the
Company's employees, as those benefits are amended
or terminated from time to time.
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You are also disabled if you are found to be disabled
within the meaning of the Company's long-term disability
insurance coverage as then in effect (or would be so
found if you applied for the coverage), and you have no
remaining:
a) earned but unused vacation days (see the
Vacation paragraph of this Agreement for the
number of vacation days available per year), and
b) earned but unused personal and sick days
generally available from time to time to the
Company's employees, as those benefits are
amended or terminated from time to time.
Good Reason You may resign for Good Reason with 45 days' advance
written notice. "Good Reason" for this purposes means,
without your consent, (i) the Company materially breaches
this Agreement or (ii) the Company relocates your primary
office by more than 50 miles from Fort Washington,
Pennsylvania.
You must give notice to the Company of your intention to
resign for Good Reason within 30 days after the
occurrence of the event that you assert entitles you to
resign for Good Reason. In that notice, you must state
the condition that you consider provides you with Good
Reason and, if such reason relates to clause (i) above,
must give the Company an opportunity to cure the
condition within 30 days after your notice. Before or
during the 30 day period, either party may request
mediation under Exhibit B to resolve any such disputes,
and, if so requested, the parties agree to cooperate to
arrange a prompt mediation during no more than a 30 day
period. If the Company fails to cure the condition, your
resignation will be effective on the 45th day after your
notice (unless the Board has previously waived such
notice period in writing or agreed to a shorter notice
period or unless mediation is proceeding in good faith),
in which case such resignation will become effective 15
days after the end of such mediation, if not previously
cured.
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You will not be treated as resigning for Good Reason if
the Company already had given notice of termination for
Cause as of the date of your notice of resignation.
In addition, you will not be treated as resigning for
Good Reason if the Company changes your position as Vice
President, Human Assets & Facilities, to another Vice
President position suitable for your skills, provided
that the terms of such position do not violate any other
provisions of this Agreement.
Death If you die during the Term, the Term will end as of the
date of your death.
Payments on If you resign or the Company terminates your employment
Termination with or without Cause or because of disability or death,
the Company will pay you any unpaid portion of your
Salary pro-rated through the date of actual termination
(and any annual bonuses already determined by such date
but not yet paid unless your employment is terminated
with Cause), reimburse any substantiated but unreimbursed
business expenses, pay any accrued and unused vacation
time (to the extent consistent with the Company's
policies), and provide such other benefits as applicable
laws or the terms of the benefits require. Except to the
extent the law requires otherwise or as provided in the
Severance paragraph or in your option agreements, neither
you nor your beneficiary or estate will have any rights
or claims under this Agreement or otherwise to receive
severance or any other compensation, or to participate in
any other plan, arrangement, or benefit, after such
termination or resignation.
Severance In addition to the foregoing payments, if the Company
terminates your employment without Cause or you resign
for Good Reason, the Company will
pay you severance equal to your Salary, as then in
effect, for six months on the same schedule as
though you had remained employed during such
period, even though you are no longer employed;
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pay the after-tax premium cost for you to receive
any group health coverage the Company must offer
you under Section 4980B of the Internal Revenue
Code of 1986 ("COBRA Coverage") for the period of
such coverage (unless the coverage is then provided
under a self-insured plan);
pay you, at the time the Company would otherwise
pay your annual bonus, your pro rata share of the
bonus for the year of your termination, where the
pro rata factor is based on days elapsed in your
year of termination till date of termination over
365, less any portion of the bonus for the year of
your termination already paid; and
It is the Company's good faith intention to provide
you, within 90 days of this agreement, a proposal of
the number of unvested options that will be subject to
accelerated vesting upon either termination without
cause, resignation for good reason, or as a result of
a change of control. In the event you do not find such
proposal acceptable, you will be entitled to cancel
this agreement within 30 days of receipt of the
Company's proposal, provided such cancellation is
effected according to the Notices paragraph of this
Agreement. In the event of such cancellation, the
provisions of your previous employment agreement, if
any, will be reinstated, and you will not be eligible
for any additional compensation or benefits offered
under this Agreement.
You are not required to mitigate amounts payable under
the Severance paragraph by seeking other employment or
otherwise, nor must you return to the Company amounts
earned under subsequent employment.
Change of Control A Change of Control for this purpose means the
occurrence of any one or more of the following events:
a
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a person, entity, or group (other than the Company,
any Company subsidiary, any Company benefit plan, or
any underwriter temporarily holding securities for an
offering of such securities) acquires ownership of
more than 50% of the undiluted total voting power of
the Company's then-outstanding securities eligible to
vote to elect members of the Board ("COMPANY VOTING
SECURITIES"); consummation of a merger or
consolidation of the Company with or into any other
entity -- unless the holders of the Company Voting
Securities outstanding immediately before such
consummation, together with any trustee or other
fiduciary holding securities under a Company benefit
plan, hold securities that represent immediately
after such merger or consolidation at least 50% of
the combined voting power of the then outstanding
voting securities of either the Company or the other
surviving entity or its parent; or the stockholders
of the Company approve (i) a plan of complete
liquidation or dissolution of the Company or (ii) an
agreement for the Company's sale or disposition of
all or substantially all the Company's assets, AND
such liquidation, dissolution, sale, or disposition
is consummated.
Expiration Expiration of this Agreement, whether because of
notice of non-renewal or otherwise, does not
constitute termination without Cause nor provide you
with Good Reason and does not entitle you to
Severance, unless the Company's general severance
practices entitle you to severance in that situation.
This Agreement shall automatically renew for an
additional two year period unless, no less than 90
days before the end of the Term, either party to this
Agreement notifies the other party, in accordance
with the Notices paragraph, of its intention to not
renew the contract upon expiration of the Term.
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If you remain employed at the end of the Term and your
employment then ends as a result of the Company's non-
renewal of this Agreement with substantially similar
terms to this Agreement, the Company will pay you
severance equal to your Salary, as then in effect, for
6 months on the same schedule as though you had
remained employed during such period, even though you
are no longer employed, which payments you agree
compensate you for the restrictions under Exhibit A
upon contract expiration.
Severability If the final determination of an arbitrator or a court
of competent jurisdiction declares, after the
expiration of the time within which judicial review (if
permitted) of such determination may be perfected, that
any term or provision of this Agreement, including any
provision of Exhibit A, is invalid or unenforceable,
the remaining terms and provisions will be unimpaired,
and the invalid or unenforceable term or provision will
be deemed replaced by a term or provision that is valid
and enforceable and that comes closest to expressing
the intention of the invalid or unenforceable term or
provision.
Amendment; Waiver Neither you nor the Company may modify, amend, or waive
the terms of this Agreement other than by a written
instrument signed by you and an executive officer of
the Company duly authorized by the Board. Either
party's waiver of the other party's compliance with any
provision of this Agreement is not a waiver of any
other provision of this Agreement or of any subsequent
breach by such party of a provision of this Agreement.
Withholding The Company will reduce its compensatory payments to
you for withholding and FICA taxes and any other
withholdings and contributions required by law.
Governing Law The laws of the State of Pennsylvania (other than its
conflict of laws provisions) govern this Agreement.
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Notices Notices must be given in writing by personal delivery,
by certified mail, return receipt requested, by
telecopy, or by overnight delivery. You should send or
deliver your notices to the Company's corporate
headquarters. The Company will send or deliver any
notice given to you at your address as reflected on the
Company's personnel records. You and the Company may
change the address for notice by like notice to the
others. You and the Company agree that notice is
received on the date it is personally delivered, the
date it is received by certified mail, the date of
guaranteed delivery by the overnight service, or the
date the fax machine confirms effective transmission.
Superseding Effect This Agreement supersedes any prior oral or written
employment, severance, or fringe benefit agreements
between you and the Company, other than with respect to
your eligibility for generally applicable employee
benefit plans, and other than any option agreements
entered into prior to the execution of this Agreement.
This Agreement supersedes all prior or contemporaneous
negotiations, commitments, agreements, and writings
with respect to the subject matter of this Agreement,
other than with respect to any previously executed
between you and the Company. All such other
negotiations, commitments, agreements, and writings
will have no further force or effect; and the parties
to any such other negotiation, commitment, agreement,
or writing will have no further rights or obligations
thereunder.
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If you accept the terms of this Agreement, please sign in the space indicated
below. We encourage you to consult with any advisors you choose.
ESPS, Inc.
By: /s/ R. Xxxxxxx Xxxx
I accept and agree to the terms of employment set
forth in this Agreement:
/s/ Xxxxxx Xxxxxx
Dated: December 21, 2000
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Exhibit A
---------
No Competition You agree to the provisions of this Exhibit A in
consideration of your employment by the Company and salary
and benefits under this Agreement and the training you will
receive in connection with such employment, and you agree
that Exhibit A should be considered ancillary to the option
agreements by which you will receive options from the
Company. While the Company (or its successor or transferee)
employs you and to the end of the Restricted Period (as
defined below), you agree as follows:
You will not, directly or indirectly, be employed by, lend
money to, or engage in any Competing Business within the
Market Area (each as defined below). That prohibition
includes, but is not limited to, acting, either singly or
jointly or as agent for, or as an employee of or consultant
to, any one or more persons, firms, entities, or
corporations directly or indirectly (as a director,
independent contractor, representative, consultant, member,
or otherwise) that constitutes such a Competing Business.
You also will not invest or hold equity or options in any
Competing Business, provided that you may own up to 3% of
the outstanding capital stock of any corporation that is
actively publicly traded without violating this No
Competition covenant, so long as you have no involvement
beyond passive investing in such business and you comply
with the second sentence of this paragraph.
If, during the Restricted Period, you are offered and want
to accept employment with a business that engages in
activities similar to the Company's, you will inform your
Direct Report in writing of the identity of the business,
your proposed duties with that business, and the proposed
starting date of that employment. You will also inform that
business of the terms of this Exhibit A. The Company will
analyze the proposed employment and make a good faith
determination as to whether it would threaten the Company's
legitimate competitive interests. If the Company
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determines that the proposed employment would not pose
an unacceptable threat to its interests, the Company
will notify you that it does not object to the
employment.
You acknowledge that, during the portion of the
Restricted Period that follows your employment, you may
engage in any business activity or gainful employment
of any type and in any place except as described above.
You acknowledge that you will be reasonably able to
earn a livelihood without violating the terms of this
Agreement.
You understand and agree that the rights and
obligations set forth in this No Competition Section
will continue and will survive through the Restricted
Period.
Definitions
Competing Competing Business means any service or product of any
Business person or organization other than the Company and its
successors, assigns, or subsidiaries (collectively, the
"Company Group") that competes with any service or
product of the Company Group provided by any member of
the Company Group during your employment. Competing
Business includes any enterprise engaged in the
creation or sale of knowledge publishing software, and
other related services to assist clients in integrating
and maintaining their knowledge publishing solutions.
Market Area The Market Area consists of the United States and
Canada. You agree that the Company provides services
both at its facilities and at the locations of its
customers or clients and that, by the nature of its
business, it operates globally.
Restricted For purposes of this Agreement, the Restricted Period
Period ends at the first anniversary of the date your
employment with the Company Group ends for any reason.
No Interference; During the Restricted Period, you agree that you will
not, directly
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No Solicitation or indirectly, whether for yourself or for any other
individual or entity (other than the Company or its
affiliates or subsidiaries), intentionally
solicit any person or entity who is, or was,
within the 24 months preceding your date of
termination or resignation, a customer, prospect
(with respect to which any member of the Company
Group has incurred substantial costs or with which
you have been involved), or client of the Company
Group within the Market Area, with the 24 month
period reduced to 12 months for prospects with
which you have not been involved;
hire away or endeavor to entice away from the
Company Group any employee or any other person or
entity whom the Company Group engages to perform
services or supply products and including, but not
limited to, any independent contractors,
consultants, engineers, or sales representatives
or any contractor, subcontractor, supplier, or
vendor; or
hire any person whom the Company Group employs or
employed within the prior 12 months.
Secrecy
Preserving Your employment with the Company under and, if
Company applicable, before this Agreement (with a predecessor
Confidences to a member of the Company Group), has given and will
give you access to Confidential Information (as defined
below). You acknowledge and agree that using,
disclosing, or publishing any Confidential Information
in an unauthorized or improper manner could cause the
Company or Company Group to incur substantial loss and
damages that could not be readily calculated and for
which no remedy at law would be adequate. Accordingly,
you agree with the Company that you will not at any
time, except in performing your employment duties to
the Company or the Company Group under this Agreement
(or with the Board's or your Direct
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Report's prior written consent), directly or
indirectly, use, disclose, or publish, or permit others
not so authorized to use, disclose, or publish any
Confidential Information that you may learn or become
aware of, or may have learned or become aware of,
because of your prior or continuing employment,
ownership, or association with the Company or the
Company Group or any of their predecessors, or use any
such information in a manner detrimental to the
interests of the Company or the Company Group.
Preserving You agree not to use in working for the Company Group
Others' and not to disclose to the Company Group any trade
Confidences secrets or other information you do not have the right
to use or disclose and that the Company Group is not
free to use without liability of any kind. You agree to
promptly inform the Company in writing of any patents,
copyrights, trademarks, or other proprietary rights
known to you that the Company or the Company Group
might violate because of information you provide.
Confidential "Confidential Information" includes, without
Information limitation, information that the Company or the Company
Group has not previously disclosed to the public or to
the trade with respect to the Company's or the Company
Group's present or future business, including its
operations, services, products, research, inventions,
discoveries, drawings, designs, plans, processes,
models, technical information, facilities, methods,
trade secrets, copyrights, software, source code,
systems, patents, procedures, manuals, specifications,
any other intellectual property, confidential reports,
price lists, pricing formulas, customer lists,
financial information (including the revenues, costs,
or profits associated with any of the Company's or the
Company Group's products or services), business plans,
lease structure, projections, prospects, opportunities
or strategies, acquisitions or mergers, advertising or
promotions, personnel matters, legal matters, any other
confidential and proprietary information, and any other
information not generally known outside the Company or
the Company Group that may be of value to the Company
or the
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Company Group but, notwithstanding anything to the
contrary, excludes any information already properly in
the public domain. "Confidential Information" also
includes confidential and proprietary information and
trade secrets that third parties entrust to the Company
or the Company Group in confidence.
You understand and agree that the rights and
obligations set forth in this Secrecy Section will
continue indefinitely and will survive termination of
this Agreement and your employment with the Company or
the Company Group.
Exclusive Property You confirm that all Confidential Information is and
must remain the exclusive property of the Company or
the relevant member of the Company Group. Any office
equipment (including computers) you receive from the
Company Group in the course of your employment and all
business records, business papers, and business
documents you keep or make, whether on digital media or
otherwise, in the course of your employment by the
Company relating to the Company or any member of the
Company Group must be and remain the property of the
Company or the relevant member of the Company Group.
Upon the termination of this Agreement with the Company
or upon the Company's request at any time, you must
promptly deliver to the Company or to the relevant
member of the Company Group any such office equipment
(including computers) and any Confidential Information
or other materials (written or otherwise) not available
to the public or made available to the public in a
manner you know or reasonably should recognize the
Company did not authorize, and any copies, excerpts,
summaries, compilations, records, or documents you made
or that came into your possession during your
employment. You agree that you will not, without the
Company's consent, retain copies, excerpts, summaries,
or compilations of the foregoing information and
materials. You understand and agree that the rights and
obligations set forth in this Exclusive Property
Section will continue indefinitely and will survive
termination of this Agreement and your employment with
the Company Group.
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Copyrights, You agree that all records, in whatever media (including
Discoveries, written works), documents, papers, notebooks, drawings,
Inventions, and designs, technical information, source code, object code,
Patents processes, methods or other copyrightable or otherwise
protected works you conceive, create, make, invent, or
discover that relate to or result from any work you perform
or performed for the Company or the Company Group or that
arise from the use or assistance of the Company Group's
facilities, materials, personnel, or Confidential
Information in the course of your employment (whether or not
during usual working hours), whether conceived, created,
discovered, made, or invented individually or jointly with
others, will be and remain the absolute property of the
Company (or another appropriate member of the Company Group,
as specified by the Company), as will all the worldwide
patent, copyright, trade secret, or other intellectual
property rights in all such works. (All references in this
section to the Company include the members of the Company
Group, unless the Company determines otherwise.) You
irrevocably and unconditionally waive all rights, wherever
in the world enforceable, that vest in you (whether before,
on, or after the date of this Agreement) in connection with
your authorship of any such copyrightable works in the
course of your employment with the Company Group or any
predecessor. Without limitation, you waive the right to be
identified as the author of any such works and the right not
to have any such works subjected to derogatory treatment.
You recognize any such works are "works for hire" of which
the Company is the author.
You will promptly disclose, grant, and assign ownership to
the Company for its sole use and benefit any and all
processes, inventions, discoveries, improvements, technical
information, and copyrightable works (whether patentable or
not) that you develop, acquire, conceive or reduce to
practice (whether or not during usual working hours) while
the Company or the Company Group employs you. You will
promptly disclose and hereby grant and assign ownership to
the Company of all patent applications, letters patent,
utility and design patents, copyrights, and reissues thereof
or any foreign equivalents thereof, that may at any time
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be filed or granted for or upon any such invention,
improvement, or information. In connection therewith:
You will, without charge but at the Company's expense,
promptly execute and deliver such applications,
assignments, descriptions, and other instruments as the
Company may consider reasonably necessary or proper to
vest title to any such inventions, discoveries,
improvements, technical information, patent
applications, patents, copyrightable works, or reissues
thereof in the Company and to enable it to obtain and
maintain the entire worldwide right and title thereto;
and
You will provide to the Company at its expense all such
assistance as the Company may reasonably require in the
prosecution of applications for such patents,
copyrights, or reissues thereof, in the prosecution or
defense of interferences that may be declared involving
any such applications, patents, or copyrights and in
any litigation in which the Company may be involved
relating to any such patents, inventions, discoveries,
improvements, technical information, or copyrightable
works or reissues thereof. The Company will reimburse
you for reasonable out-of-pocket expenses you incur and
pay you reasonable compensation for your time if the
Company Group no longer employs you.
To the extent, if any, that you own rights to works,
inventions, discoveries, proprietary information, and
copyrighted or copyrightable works, or other forms of
intellectual property that are incorporated in the work
product you create for the Company Group, you agree that the
Company will have an unrestricted, non-exclusive, royalty-
free, perpetual, transferable license to make, use, sell,
offer for sale, and sublicense such works and property in
whatever form, and you hereby grant such license to the
Company (and the Company Group).
This Copyrights, Discoveries, Inventions and Patents section
does not apply to an invention or discovery for which no
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equipment, supplies, facility or trade secret information of
the Company Group (including its predecessors) was used and
that was developed entirely on your own time, unless (a) the
invention relates (i) directly to the business of the
Company Group, or (ii) the Company Group's actual or then
reasonably anticipated research or development, or (b) the
invention results from any work you performed for the
Company Group or any predecessor.
Maximum Limits If any of the provisions of Exhibit A are ever deemed to
exceed the time, geographic area, or activity limitations
the law permits, you and the Company agree to reduce the
limitations to the maximum permissible limitation, and you
and the Company authorize a court or arbitrator having
jurisdiction to reform the provisions to the maximum time,
geographic area, and activity limitations the law permits;
provided, however, that such reductions apply only with
respect to the operation of such provision in the particular
jurisdiction with respect to which such adjudication is
made.
Injunctive Relief Without limiting the remedies available to the Company, you
acknowledge
that a breach of any of the covenants in this Exhibit A
may result in material irreparable injury to the
Company and Company Group for which there is no
adequate remedy at law, and
that it will not be possible to measure damages for
such injuries precisely.
You agree that, if there is a breach or threatened breach,
the Company or any member of the Company Group may be
entitled to obtain a temporary restraining order and/or a
preliminary or permanent injunction restraining you from
engaging in activities prohibited by any provisions of this
Exhibit A or such other relief as may be required to
specifically enforce any of the covenants in this Exhibit A.
The Company or any member of the Company Group will, in
addition to the remedies provided in this
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Agreement, be entitled to avail itself of all such other
remedies as may now or hereafter exist at law or in equity
for compensation and for the specific enforcement of the
covenants contained in this Agreement. Resort to any remedy
provided for in this Section or provided for by law will not
prevent the concurrent or subsequent employment of any other
appropriate remedy or remedies, or preclude the Company's or
the Company Group's recovery of monetary damages and
compensation. You also agree that the Restricted Period or
such longer period during which the covenants hereunder by
their terms survive will extend for any and all periods for
which a court with personal jurisdiction over you finds that
you violated the covenants contained in this Exhibit A.
Exhibit B
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Dispute Resolution
Mediation If either party has a dispute or claim relating to this Agreement
or their relationship and except as set forth in Alternatives,
the parties must first seek to mediate the same before an
impartial mediator the parties mutually designate, and the
parties must equally share the expenses of such proceeding (other
than their respective attorneys' fees). Subject to the mediator's
schedule, the mediation must occur within 45 days of either
party's written demand. However, in an appropriate circumstance,
a party may seek emergency equitable relief from a court of
competent jurisdiction notwithstanding this obligation to
mediate.
Binding If the mediation reaches no solution or the parties agree to
Arbitration forego mediation, the parties will promptly submit their disputes
to binding arbitration before one or more arbitrators
(collectively or singly, the "Arbitrator") the parties agree to
select (or whom, absent agreement, a court of competent
jurisdiction selects). The arbitration must follow applicable law
related to arbitration proceedings and, where appropriate, the
Commercial Arbitration Rules of the American Arbitration
Association.
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Arbitration All statutes of limitations and substantive laws applicable to
Principles a court proceeding will apply to this proceeding. The
Arbitrator will have the power to grant relief in equity as
well as at law, to issue subpoenas duces tecum, to question
witnesses, to consider affidavits (provided there is a fair
opportunity to rebut the affidavits), to require briefs and
written summaries of the material evidence, and to relax the
rules of evidence and procedure, provided that the Arbitrator
must not admit evidence it does not consider reliable. The
Arbitrator will not have the authority to add to, detract from,
or modify any provision of this Agreement. The parties agree
(and the Arbitrator must agree) that all proceedings and
decisions of the Arbitrator will be maintained in confidence,
to the extent legally permissible, and not be made public by
any party or the Arbitrator without the prior written consent
of all parties to the arbitration, except as the law may
otherwise require.
Discovery; The parties have selected arbitration to expedite the
resolution of disputes
Evidence; and to reduce the costs and burdens associated with litigation.
Presumptions The parties agree that the Arbitrator should take these
concerns into account when determining whether to authorize
discovery and, if so, the scope of permissible discovery and
other hearing and pre-hearing procedures. The Arbitrator may
permit reasonable discovery rights in preparation for the
arbitration, provided that it should accelerate the scheduling
of and responses to such discovery so as not to unreasonably
delay the arbitration. Exhibits must be marked and left with
the Arbitrator until it has rendered a decision. Either party
may elect, at its expense, to record the proceedings by
audiotape or stenographic recorder (but not by video). The
Arbitrator may conclude that the applicable law of any foreign
jurisdiction would be identical to that of Texas on the
pertinent issue(s), absent a party's providing the Arbitrator
with relevant authorities (and copying the opposing party) at
least five business days before the arbitration hearing.
Nature of Award The Arbitrator must render its award, to the extent feasible,
within 30 days after the close of the hearing. The award must
set forth the material findings of fact and legal conclusions
supporting the award. The parties agree that it will be final,
binding, and enforceable by any court of competent
jurisdiction. Where necessary or appropriate to
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effectuate relief, the Arbitrator may issue equitable orders as
part of or ancillary to the award. The Arbitrator must equitably
allocate the costs and fees of the proceeding and may consider in
doing so the relative fault of the parties. The Arbitrator may
award reasonable attorneys' fees to the prevailing party to the
extent a court could have made such an award.
Appeal The parties may appeal the award based on the grounds allowed by
statute, as well as upon the ground that the award misapplies the
law to the facts, provided that such appeal is filed within the
applicable time limits law allows. If the award is appealed, the
court may consider the ruling, evidence submitted during the
arbitration, briefs, and arguments but must not try the case de
novo. The parties will bear the costs and fees associated with
the appeal in accordance with the arbitration award or, in the
event of a successful appeal, in accordance with the court's
final judgment.
Alternatives This Dispute Resolution provision does not preclude a party from
seeking equitable relief from a court (i) to prevent imminent or
irreparable injury or (ii) pending arbitration, to preserve the
last peaceable status quo, nor does it preclude the parties from
agreeing to a less expensive and faster means of dispute
resolution. It does not prevent the Company from immediately
seeking in court an injunction or other remedy with respect to
Exhibit A.
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