Exhibit 10.19
ESPS, Inc.
Employment Agreement
To Xxxxxxx 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, Strategic Marketing 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, Strategic Marketing.
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
$132,000 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
$50,000. 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.
Relocation In the event the Company relocates your principal place
Expenses 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 four 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 While the Company employs you under this Agreement, the
Benefits 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 will be subject to the terms of
the applicable plan documents and the Company's generally
applied policies, and the Company in its
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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.
No Conflicts of You confirm that you have fully disclosed to the Company,
Interest to the best of your knowledge, all circumstances under
which you, your spouse, and other persons who reside in
your household have or
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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 relating to trading with the
enemy, export control, and boycotts of Israel or
Israeli products (as is sought by certain Arab
countries).
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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 material dishonest act or common law
fraud or knowingly violate any federal or state
securities or tax laws.
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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.
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:
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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.
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.
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In addition, you will not be treated as resigning for Good
Reason if the Company changes your position as Vice
President, Strategic Marketing, 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 with
Termination 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;
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
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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 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%
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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.
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
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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.
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
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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, except with respect to:
a) your eligibility for generally applicable employee
benefit plans,
b) any guaranteed, unpaid incentive pay or signing bonus
accordance with your original offer latter dated May
24, 2000, and
c) other than with respect to any previously executed
option agreements between you and the Company.
This Agreement supersedes all prior or contemporaneous
negotiations, commitments, agreements, and writings with
respect to the subject matter of this Agreement, except as
noted in (a) through (c) above. 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/ Xxxxxxx Xxxxxx
Dated: January 2, 2001
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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 applicable,
Company before this Agreement (with a predecessor to a member of the
Confidences 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 and not
Others' to disclose to the Company Group any trade secrets or other
Confidences 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 limitation,
Information 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 a
Principles 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
Evidence; of disputes and to reduce the costs and burdens associated with
Presumptions litigation. 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 The Arbitrator must render its award, to the extent feasible,
Award 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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