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Exhibit 10.5
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made this 1st day of
January, 2000, by and between SEQUOIA SOFTWARE CORPORATION, a Maryland
corporation (the "Company"), and XXXX X. WESKER (the "Employee").
IN CONSIDERATION OF the mutual covenants and agreements hereinafter set
forth, the parties hereto hereby agree as follows:
1. Employment.
The Company hereby employs the Employee, and the Employee hereby accepts
employment with the Company, upon the terms and conditions hereinafter set
forth.
2. Term.
Unless Employee's employment hereunder is terminated earlier pursuant to
Section 5 of this Agreement, Employee's employment hereunder shall begin on the
date hereof and shall expire two (2) years from the date hereof, provided that
upon the expiration of the first two (2) years of such employment, the
Employee's employment hereunder shall continue for additional consecutive
extension terms of one (1) year each until either party gives notice of
termination to the other at least one hundred eighty (180) days prior to end of
the then current term. The term of employment described in the immediately
preceding sentence, including any extensions but without giving effect to any
earlier termination provided for under Section 5 of this Agreement, is
hereinafter described as the "Contract Term." The period of time during which
the Employee actually is employed hereunder, giving effect to any termination
of employment under Section 5 of this Agreement, is hereinafter described as
the "Term."
3. Duties and Responsibilities.
3.1 During the Term, the Employee shall devote his full attention
and expend his best efforts, energies, and skills, on a full-time basis, to the
business of the Company and any corporation, partnership or other entity
controlled by the Company (each, a "Subsidiary"). For purposes of this
Agreement, the term the "Company" shall mean the Company and all Subsidiaries.
3.2 During the Term, the Employee shall serve as the President
and Chief Operating Officer of the Company. In the performance of all of his
responsibilities as President and Chief Operating Officer hereunder, the
Employee shall be subject to all of the Company's policies, rules and
regulations applicable to its employees of comparable status, shall report
directly to, and be subject to the direction and control of, the Chief
Executive Officer of the Company, and shall perform such duties as shall
reasonably be assigned to him by the Chief Executive Officer and are consistent
with those duties assigned employees of comparable status. In performing such
duties, the Employee will be subject to and abide by, and will cause employees
of the Company to be subject to and abide by, all policies and procedures
developed by senior management of the
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Company. During the Term, the Employee shall be based in offices located within
a radius of forty-five (45) miles of the Baltimore, Maryland city center, and,
other than business travel of reasonable amounts and duration, Employee shall
not be required to perform services outside of the greater Baltimore, Maryland
metropolitan area.
3.3 In order to induce the Company to enter into this Agreement,
the Employee represents and warrants to the Company that (a) the Employee is
not a party or subject to any employment agreement or arrangement with any
other person, firm, company, corporation or other business entity, and (b) the
Employee is subject to no restraint, limitation or restriction by virtue of any
law, any contract or otherwise which would impair the Employee's right or
ability (i) to enter the employ of the Company, or (ii) to perform fully his
duties and obligations pursuant to this Agreement.
4. Compensation and Benefits.
4.1 For all services rendered by the Employee under this
Agreement, the Company shall pay or cause to be paid to the Employee, and the
Employee shall accept, the Base Salary (as such term is hereinafter defined in
this Article 4) and participation in the Sequoia Software Corporation 2000
Stock Incentive Plan, all in accordance with and subject to the terms of this
Agreement. The term "Compensation" shall mean the Base Salary and participation
in the Sequoia Software Corporation 2000 Stock Incentive Plan.
4.2 During the Term, the Company shall pay the Employee a "Base
Salary" at an annual rate of One Hundred Fifty Thousand Dollars ($150,000),
payable in installments in accordance with the Company's regular payroll
practices and subject to all withholding required by law. The Board of
Directors of the Company shall review the Base Salary of the Employee at least
annually and may grant increases thereto in its sole discretion.
4.3 During the Employee's employment under this Agreement, the
Employee shall be eligible to participate in the Sequoia Software Corporation
2000 Stock Incentive Plan, and other stock plans as may be maintained by the
Company from time to time, in whole or in part. The Employee's awards under
such stock plans shall be determined by the Company, the Board of Directors or
such person or administrative body as provided under such plans.
4.4 During the Term, the Employee shall be entitled to (i)
participation in such employee retirement, and welfare benefit plans, programs,
policies and arrangements as maintained by the Company from time to time, in
whole or in part, for employees of his level; subject to, and to the extent
that, the Employee is eligible under such benefit plans in accordance with
their respective terms (ii) paid vacation, holidays, leave of absence, leave
for illness, funeral leave and temporary disability leave in accordance with
the policies of the Company; and (iii) perquisites as from time to time
provided by the Company to employees of his level.
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4.5 During the Term, the Employee is authorized to incur
reasonable expenses in the performance of his duties hereunder. The Company
shall reimburse the Employee for all such expenses upon the presentation by the
Employee, not less frequently than monthly, of signed, itemized accounts of
such expenditures and vouchers, all in accordance with the Company's procedures
and policies as adopted and in effect from time to time and applicable to its
employees of comparable status.
5. Termination.
5.1 The Company may terminate the Employee's employment under
this Agreement at any time for Cause. "Cause" shall exist for such termination
if Employee (i) is adjudicated guilty of a felony by a court of competent
jurisdiction, (ii) commits any act of fraud or intentional misrepresentation,
(iii) has materially breached any covenant set forth in this Agreement or
willfully violated any direction of the Board of Directors of the Company,
which breach or willful violation the Employee has not cured within thirty (30)
days following notice by the Board of Directors to the Employee of the breach
or willful violation, or (iv) has made any material misrepresentation to the
Company under Section 3.3 hereof.
5.2 The Company may terminate the Employee's employment under
this Agreement at any time without Cause. If the Company breaches any term of
this Agreement and fails to cure such breach within thirty (30) days of notice
of such breach from the Employee, and if Employee terminates his employment
with the Company within thirty (30) days after the period for the cure of the
breach by the Company expires, the Company shall be deemed to have terminated
the Employee's employment hereunder without Cause.
5.3 The Employee may voluntarily terminate his employment under
this Agreement at any time. For the purposes of this Agreement, if the Employee
terminates his employment under this Agreement pursuant to the second sentence
of Section 5.2 above, he shall not be deemed to have terminated such employment
under this Section 5.3.
5.4 The election of the Company to give notice in accordance with
Section 2 above that the Employee's employment hereunder will not be extended
for an additional one (1) year term shall not constitute a termination of the
Employee's employment hereunder by the Company without Cause for the purposes
of Section 5.2 above.
6. Severance Payments.
If the Employee's employment under this Agreement is terminated during
the Term of the Agreement by the Company without Cause, the Employee shall be
entitled to continuation in payment of his Base Salary, at the rate in effect
immediately before the date of termination, for a period equal to the greater
of (a) the period from the day after his last day of employment hereunder
through the last day of the Term of this Agreement, or (b) one (1) year,
provided that the Employee (i) honors the restrictive covenants as provided in
Section 7 of this Agreement and (ii) executes a
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release of all claims arising from his employment by the Company, in such form
as may then be used by the Company respecting termination of employees.
7. Restrictive Covenants.
The Employee shall execute and be bound by the Employee Invention,
Assignment and Confidentiality Agreement, which is attached hereto as Exhibit
A. The Employee agrees that the Employee Invention, Assignment and
Confidentiality Agreement constitutes a separate agreement independently
supported by good and adequate consideration and, notwithstanding anything in
this Agreement to the contrary, shall be severable from the other provisions
of, and shall survive, this Agreement.
8. Miscellaneous.
8.1 This Agreement is a personal contract, and the rights and
interests of the Employee hereunder may not be sold, transferred, assigned,
pledged or hypothecated except as otherwise expressly permitted by the
provisions of this Agreement. The Employee shall not under any circumstances
have any option or right to require payment hereunder otherwise than in
accordance with the terms hereof. Except as otherwise expressly provided
herein, the Employee shall not have any power of anticipation, alienation or
assignment of payments contemplated hereunder, and all rights and benefits of
the Employee shall be for the sole personal benefit of the Employee, and no
other person shall acquire any right, title or interest hereunder by reason of
any sale, assignment, transfer claim or judgment or bankruptcy proceedings
against the Employee; provided, however, that in the event of the Employee's
death, the Employee's estate, legal representatives or heirs, as appropriate,
shall succeed to and acquire all rights and benefits that accrued to the
Employee pursuant to, and in accordance with, the terms of this Agreement.
8.2 The Company shall have the right to assign this Agreement to
any successor to substantially all of its business or assets, and any such
successor shall be bound by all of the provisions hereof.
8.3 Any notice required or permitted by or in connection with
this Agreement shall be in writing and shall be made by hand delivery, by
Federal Express, or other similar overnight delivery service, or by certified
mail, unrestricted delivery, return receipt requested, postage prepaid,
addressed to the addressee at the appropriate address set forth below or to
such other address as may be hereafter specified by written notice by the
addressee to the other party to this Agreement. Notice shall be considered
given as of the date of the hand delivery, one (1) calendar day after delivery
to Federal Express or similar overnight delivery service, or three (3) calendar
days after the date of mailing, independent of the date of actual delivery or
whether delivery is ever in fact made.
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If to the Company: Sequoia Software Corporation
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Board of Directors
If to the Employee: Xxxx X. Wesker
c/o Sequoia Software Corporation
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
8.4 This Agreement may not be changed, amended, terminated or
superseded orally, but only by an agreement in writing, nor may any of the
provisions hereof be waived orally, but only by an instrument in writing, in
any such case signed by the party against whom enforcement of any change,
amendment, termination, waiver, modification, extension or discharge is sought.
8.5 Except as otherwise provided herein, this Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Maryland, without giving any effect to the principles of conflicts of laws.
8.6 All descriptive headings and captions of the several sections
of this Agreement are inserted for convenience only and do not constitute a
part of this Agreement.
8.7 If any provision of this Agreement, or part thereof, is held
to be unenforceable, the remainder of this Agreement and provision, as the case
may be, shall nevertheless remain in full force and effect.
8.8 Each of the parties hereto shall, at any time and from time
to time hereafter, upon the reasonable request of the other, take such further
actions and execute, acknowledge and deliver all such instruments of further
assurance as necessary to carry out the provisions of this Agreement.
8.9 This Agreement contains the entire agreement and
understanding between the Company and the Employee with respect to the subject
matter hereof and supersedes all prior understandings and agreements, including
any prior employment contract or agreement, whether oral or written, between
the parties hereto with respect to the specific subject matter hereof. No
representations or warranties of any kind or nature relating to the Company or
its affiliates or their respective businesses, assets, liabilities, operations,
future plans or prospects have been made by or on behalf of the Company to the
Employee; nor have any representations or warranties of any kind
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or nature been made by the Employee to the Company, except as expressly set
forth in this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date hereinabove written.
THE COMPANY:
SEQUOIA SOFTWARE CORPORATION
By: /s/ Xxxxxxx X. Faint, Jr.
--------------------------------------
Name: Xxxxxxx X. Faint, Jr.
---------------------------------
Title: Chief Executive Officer
--------------------------------
THE EMPLOYEE:
/s/ Xxxx X. Wesker
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EXHIBIT A
EMPLOYEE INVENTION,
ASSIGNMENT AND
CONFIDENTIALITY AGREEMENT
In consideration, and as a condition of my employment with Sequoia
Software Corporation, a Maryland corporation (the "COMPANY"), I hereby
represent to, and agree with the Company as follows:
1. Purpose of Agreement. I understand that the Company is or will be
engaged in a continuous program of research, development, production and
marketing in connection with its business and that it is critical for the
Company to preserve and protect its "Confidential Information" (as defined in
Section 6 below), its rights in "Inventions" (as defined in Section 2 below)
and in all related intellectual property rights. Accordingly, I am entering
into this Employee Invention Assignment and Confidentiality Agreement (the
"AGREEMENT") as a condition of my employment with the Company, whether or not I
am expected to create inventions of value for the Company.
2. Disclosure of Inventions. I will promptly disclose in confidence to
the Company all inventions, improvements, designs, original works of
authorship, formulas, processes, compositions of matter, computer software
programs, Internet products and services, e-commerce products and services,
e-entertainment products and services, databases, mask works and trade secrets
(the "INVENTIONS") that I make or conceive or first reduce to practice or
create, either alone or jointly with others, during the period of my
employment, whether or not in the course of my employment, and whether or not
such Inventions are patentable, copyrightable or protectible as trade secrets.
3. Work for Hire; Assignment of Inventions. I acknowledge and agree
that any copyrightable works prepared by me within the scope of my employment
are "works for hire" under the Copyright Act and that the Company will be
considered the author and owner of such copyrightable works. I agree that all
Inventions that (i) are developed using equipment, supplies, facilities or
trade secrets of the Company, (ii) result from work performed by me for the
Company, or (iii) relate to the Company's business or current or anticipated
research and development, will be the sole and exclusive property of the
Company and are hereby irrevocably assigned by me to the Company from the
moment of their creation and fixation in tangible media.
4. Assignment of Other Rights. In addition to the foregoing assignment
of Inventions to the Company, I hereby irrevocably transfer and assign to the
Company: (i) all worldwide patents, patent applications, copyrights, mask
works, trade secrets and other intellectual property rights in any Invention;
and (ii) any and all "Moral Rights" (as defined
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below) that I may have in or with respect to any Invention. I also hereby
forever waive and agree never to assert any and all Moral Rights I may have in
or with respect to any Invention, even after termination of my work on behalf
of the Company. "MORAL RIGHTS" mean any rights to claim authorship of an
Invention, to object to or prevent the modification of any Invention, or to
withdraw from circulation or control the publication or distribution of any
Invention, and any similar right, existing under judicial or statutory law of
any country in the world, or under any treaty, regardless of whether or not
such right is denominated or generally referred to as a "moral right."
5. Assistance. I agree to assist the Company in every proper way to
obtain for the Company and enforce patents, copyrights, mask work rights, trade
secret rights and other legal protections for the Company's Inventions in any
and all countries. I will execute any documents that the Company may reasonably
request for use in obtaining or enforcing such patents, copyrights, mask work
rights, trade secrets and other legal protections. My obligations under this
section will continue beyond the termination of my employment with the Company,
provided that the Company will compensate me at a reasonable rate after such
termination for time or expenses actually spent by me at the Company's request
on such assistance. I appoint the Secretary of the Company as my
attorney-in-fact to execute documents on my behalf for this purpose.
6. Confidentiality Obligations.
6.1 Acknowledgement. I understand that my employment by the
Company creates a relationship of confidence and trust with respect to any
information of a confidential or secret nature that may be disclosed to me by
the Company that relates to the business of the Company or to any parent,
subsidiary, affiliate, customer, consultant or supplier of the Company or any
other party with whom the Company or any other party with whom the Company
agrees to hold such information (including any and all copies thereof) of such
party in confidence (the "CONFIDENTIAL INFORMATION"). Such Confidential
Information is defined more specifically in Section 6.3 below.
6.2 Obligations. I agree to take the following steps to preserve
the confidential and proprietary nature of Confidential Information:
(a) Non-Disclosure. At all times both during and after my
employment with Company, I will not use, disclose or transfer any of the
Confidential Information other than as authorized by Company, except as may be
necessary to perform my duties as an employee of the Company for the benefit of
the Company. I understand that I am not allowed to sell, license or otherwise
exploit any products (including software or content in any form) which embody
or otherwise exploit in whole or in part any Confidential Information.
(b) Disclosure Prevention. I will take all reasonable
precautions to prevent the inadvertent or accidental exposure of Confidential
Information.
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(c) Removal. I will not remove any Confidential Information
from Company's premises or make copies of such materials except for use in
Company's business.
(d) Return. I will return promptly to Company all
Confidential Information and copies thereof at any time upon the request of
Company, in any event and without such request, prior to the termination of my
employment by Company. I agree not to retain any tangible or intangible copies
of any Confidential Information after my termination of employment for any
reason. Upon termination of my employment, I will not take with me any
documents or materials or copies thereof containing any Confidential
Information.
6.3 Confidential Information. The following materials and
information (including any and all copies thereof), whether having existed, now
existing, or to be developed or created during the term of my employment by
Company (herein referred to collectively as the "Confidential Information")
whether tangible or intangible, and whether or how stored, compiled or
memorialized physically, electronically, graphically, photographically or in
writing, are covered by this Agreement and acknowledged by me to be valuable,
special and unique assets of Company the disclosure of which, may be materially
damaging.
(a) Software. All information relating to existing software
products and software in various stages of research and development which are
not generally known to the public or within the Internet industry or trade in
which Company competes (such as know-how, Inventions, design specifications,
algorithms, technical formulas, engineering data, benchmark test results,
search engines, Internet and e-commerce tools, methodologies, procedures,
techniques, and information processing processes) and the physical embodiments
of such information (such as drawings, specification sheets, design notes,
source code, object code, HTML code, XML code, scripts, applets, load modules,
schematics, flow charts, logic diagrams, procedural diagrams, coding sheets,
work sheets, documentation, annotations, printouts, studies, manuals, proposals
and any other written or machine-readable manuals, proposals and any other
written or machine readable expressions of such information as are fixed in any
tangible media).
(b) Other Products and Services. All information relating
to consulting, Inventions, entertainment content, research and development and
other proprietary products or services, whether existing or in various stages
of research and development, which are not generally known to the public or
within the Internet industry or trade in which Company competes (such as
know-how, content, specifications, technical data, engineering data, processes,
techniques, methodologies, and strategies) and the physical embodiments of such
information (such as drawings, schematics, data files, video, text, pictures,
sound, graphics, specification sheets, instructor manuals, course materials,
training aids, video cassettes, transparencies, slides, taped recordings of
presentations, proposals, printouts, studies, contracts, maintenance manuals,
documentation, and any other written or machine-readable expressions of such
information as are fixed in any tangible media).
(c) Business Procedures. All information concerning or
relating to the way Company conducts its business which is not generally known
to the public or within the Internet industry (such as internal business
procedures, controls, internal telephone numbers,
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plans, licensing techniques and practices, supplier, subcontractor, consultant,
and prime contractor names and contracts and other vendor information, computer
system passwords and other computer security controls, financial information,
distributor information, and employee data) and the physical embodiments of
such information (such as check lists, samples, services and operational
manuals, contracts, proposals, print-outs, correspondence, forms, listings,
ledgers, financial statements, financial reports, financial and operational
analyses, financial and operational studies, management reports of every kind,
databases, personnel records pertaining to employees other than myself, and any
other written or machine-readable expressions of such information as are fixed
in any tangible media).
(d) Marketing Plans and Customer Lists. All information
pertaining to Company's marketing plans and strategies; forecasts and
projections; marketing practices, procedures and policies; financial data;
discounts; margins; costs; credit terms; pricing practices, procedures and
policies; domain names; goals and objectives; quoting practices, procedures and
policies; and customer data including customer lists, contracts,
representatives, requirements and needs, specifications, data provided by or
about prospective existing or past customers and contract terms applicable to
such customers and Web site visitor data, and the physical embodiments of such
information (such as license agreements, customer lists, print-outs, databases,
marketing plans, marketing reports, strategic business plans, marketing
analyses and management reports, seminar and class attendee rosters, trade show
or exhibit attendee listings, listings of potential customers and leads, and
any other written or machine-readable expressions of such information as are
fixed in any tangible media).
(e) Not Generally Known. Any information in addition to the
foregoing which is not generally known to the public or within the Internet or
software industry or trade in which Company competes, and the physical
embodiments of such information in any tangible form, whether written or
machine-readable in nature.
6.4 General Knowledge. The general skills, knowledge and
experience gained during my employment with Company, and information publicly
available or generally known within the industry or trade in which Company
competes, is not considered Confidential Information. Also, upon termination of
my employment with Company, I shall not, subject to the provisions of Section 7
below, be restricted from working with a person or entity which has
independently developed information or materials similar to Confidential
Information as long as I comply with my continuing obligations under this
Agreement.
6.5 Information Disclosed Remains Property of Company. I agree
and acknowledge that all ideas, concepts, information, and written material
disclosed to me by Company, or acquired from a customer or prospective customer
of Company are and shall remain the sole and exclusive property and
Confidential Information of Company or such customers, and are disclosed in
confidence by Company or permitted to be acquired from such customers in
reliance on my agreement to maintain them in confidence and not to use or
disclose them to any other person except in furtherance of Company's business
and for Company's benefit.
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7. Non-Competition Covenant.
7.1 Competitor Defined. The term "COMPETITOR" shall refer to any
person, firm, corporation, partnership or other business entity engaged in or
about to become engaged in the production, licensing, sale or marketing of any
product or service or planned business of Company:
(a) which is similar to or directly competitive with
Company's proprietary Internet, e-commerce or software,
research and development or development of any product or
service of Company with which I have been directly concerned
through my work for Company during the preceding two (2)
years; or
(b) with respect to which I have acquired Confidential
Information.
7.2 Restrictive Covenant. As a material inducement to Company to
enter into this Agreement, I covenant and agree that without the Company's
prior written consent, during my employment with Company and for a period of
one (1) year following the termination of my employment, whether such
termination be with or without cause, I shall not enter the employ of any
Competitor, nor engage during such period, directly or indirectly, voluntarily
or involuntarily, as principal, agent, officer, employee or otherwise, anywhere
in the United States, in any actions to solicit, divert or take away any
customer or supplier of Company, or provide services to, or assist in any
manner any Competitor, or otherwise compete with Company in the sale or
licensing, of any products or services competitive with the game, Internet,
e-commerce or e-entertainment products or services developed or marketed by
Company in the United States.
Notwithstanding the foregoing, I shall retain the right to invest
in or have an interest in entities traded on any public market or offered by
any national brokerage house, provided that said interest does not exceed one
percent (1%) of the voting control of said entity. In addition, I may make
passive investments in privately held entities that are determined by the Board
of Directors of the Company not to be competitors of the Company.
7.3 Employee's Acknowledgements and Agreements. I acknowledge
that the covenant in Section 7.2 has a unique, very substantial and
immeasurable value to Company. I acknowledge and agree that the Internet,
e-commerce and software products and services developed by Company are or are
intended to be marketed and licensed to customers worldwide. I further
acknowledge and agree to the reasonableness of this covenant not to compete and
the reasonableness of the geographic area and duration of time which are a part
of said covenant. I also acknowledge and agree that this covenant will not
impair me from becoming gainfully employed, or otherwise earning a livelihood
following termination of employment with Company.
8. Non-Solicitation. I agree that any attempt on my part to induce
others to leave Company's employ, or any effort by me to interfere with
Company's relationship with its other employees would be harmful and damaging
to Company. I agree that during employment and
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for a period of two (2) years thereafter, I will not in any way, directly or
indirectly (i) induce or attempt to induce any employee of Company to quit
employment with Company; (ii) otherwise interfere with or disrupt Company's
relationship with its employees; (iii) solicit, entice, or hire away any
employee of Company; or (iv) hire or engage any employee of Company or any
former employee of Company whose employment with Company ceased less than one
(1) year before the date of such hiring or engagement.
9. Project Completion. I agree to give Company at least thirty (30)
days prior written notice of termination to minimize any adverse effect on
Company for any project in which I might be involved on behalf of Company. I
agree to use my best efforts prior to termination to complete any project then
assigned to me to the reasonable satisfaction of the Company, and to be
available thereafter as reasonably required to assist with a transition and to
answer questions explaining the work done by me prior to termination.
10. Notification. I hereby authorize the Company to notify my actual or
future employers of the terms of this Agreement and my responsibilities
hereunder.
11. Name and Likeness Rights. I hereby authorize the Company to use,
reuse, and to grant others the right to use and reuse my name, photograph,
likeness (including caricature), voice, and biographical information, and any
reproduction or simulation thereof, in any media now known or hereafter
developed (including, but not limited to, film, video and digital or other
electronic media), both during and after my employment, for whatever purposes
the Company deems necessary.
12. Injunctive Relief. I agree that damages in the event of any breach
or threatened breach of this Agreement by me would be difficult to ascertain
and that the Company may suffer irreparable harm. I therefore agree that,
notwithstanding anything in this Agreement to the contrary, the Company, in
addition to and without limiting any other remedy or right it may have, shall
have the right to an injunction or other equitable relief in any court of
competent jurisdiction enjoining any such breach. I hereby waive any and all
defenses I may have on the ground of lack of jurisdiction or competence of the
court to grant such an injunction or other equitable relief. The existence of
this right shall not preclude any other rights and remedies at law or in equity
which the Company may have.
13. Assignment. My rights, interest and benefits hereunder shall not be
assigned, transferred, pledged, or hypothecated in any way by me. The rights
and obligations of the Company under this Agreement shall inure to the benefit
of and be binding upon the successors of Company. If Company shall at any time
be merged or consolidated with or into another corporation, or if substantially
all the assets of Company are transferred to another corporation, the
provisions of this Agreement shall be binding on and shall inure to the benefit
of the corporation resulting from such merger or consolidation or to which such
assets shall be transferred.
14. Governing Law; Severability. This Agreement will be governed and
interpreted in accordance with the internal laws of the State of Maryland,
without regard to or application of
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choice-of-law rules or principles. In the event that any provision of this
Agreement is found by a court, arbitrator or other tribunal to be illegal,
invalid or unenforceable, then such provision shall not be voided, but shall be
enforced to the maximum extent permissible under applicable law, and the
remainder of this Agreement shall remain in full force and effect.
15. Forum Selection. The parties agree that any legal proceeding,
commenced by one party against the other, shall be brought in any state or
Federal court having proper jurisdiction, within the State of Maryland. Both
parties submit to such jurisdiction, and waive any objection to venue and/or
claim of inconvenient forum.
16. No Breach of Prior Agreement. I represent that my performance of
all the terms of this Agreement and my duties as an employee of the Company
will not breach any invention assignment, proprietary information,
confidentiality or similar agreement with any former employer or other party. I
represent that I will not bring with me to the Company or use in the
performance of my duties for the Company any documents or materials or
intangibles of a former employer or third party that are not generally
available to the public or have not been legally transferred to the Company.
17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
18. Headings. The captions and headings of this Agreement are included
for ease of reference only and will be disregarded in interpreting or
construing this Agreement. All references herein to sections will refer to
sections of this Agreement.
19. Entire Agreement. This Agreement constitutes the entire agreement
and understanding of the parties with respect to the subject matter of this
Agreement, and supersedes all prior understandings and agreements, whether oral
or written, between the parties hereto with respect to the specific subject
matter hereof.
SEQUOIA SOFTWARE CORPORATION EMPLOYEE
By: /s/ Xxxxxxx X. Faint, Jr. /s/ Xxxx X. Wesker
--------------------------------- --------------------------------------
Signature
Name: Xxxxxxx X. Faint, Jr. Xxxx X. Wesker
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Name (Please print)
Title: Chief Executive Officer
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