{"id":39408,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-network-computer-inc-and-wei-yen.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-network-computer-inc-and-wei-yen","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-network-computer-inc-and-wei-yen.html","title":{"rendered":"Employment Agreement &#8211; Network Computer Inc. and Wei Yen"},"content":{"rendered":"<pre>                            EMPLOYMENT AGREEMENT\n\nOctober 17, 1997\n\nDr. Wei Yen\n10431 Plum Tree Lane\nCupertino, CA 95014\n\nDear Dr. Yen:\n\n     This letter confirms the terms of your employment with Network Computer, \nInc. (the 'Company') on and after the date hereof and supersedes in its \nentirety the letter dated June 5, 1997 (other than the provisions of the \nsecond paragraph of Section 7 (relating to your release of claims) of such \nletter which paragraph shall remain in effect), which outlined the previous \nterms of your employment with the Company. Such employment will be on the \nfollowing terms:\n\n     1.  EMPLOYMENT AND POSITION: You will be an employee and President \n('President') of the Company, reporting to the Chief Executive Officer \n('CEO') of the Company, and assuming and discharging such responsibilities as \nare mutually agreed upon by you and the CEO, commensurate with such office \nand position. At a minimum, you will serve as an employee until June 15, \n1998. If at any time after February 15, 1998 you determine that you will be \nresigning as an employee of the Company after June 15, 1998, and you no \nlonger wish to serve as President, then you will promptly notify the CEO of \nsuch determination and you and the CEO in consultation with the Board of \nDirectors of NCI shall mutually agree upon a title other than President to \nmore accurately reflect your transition status. Thereafter, your primary duty \nwill be to assist in a mutually agreed manner in the transition of Navio \nCommunications, Inc. ('Navio') into the Company, including the transition of \nclient relationships and development projects.\n\n         Either you or the Company may terminate your employment upon 30 days \nnotice to the other party, subject to Sections 6 and 7 hereof.\n\n         You will continue to serve on the Company's Board of Directors until \nyour successor is duly appointed or you terminate your employment with the \nCompany, whichever comes first.\n\n         During the term of your employment with the Company, you will \nperform your normal work activities, and you shall perform them faithfully, \ndiligently and competently, and you shall use your best efforts to further \nthe business of the Company and its affiliated entities.\n\n     2.  BASE SALARY: In consideration of your services, you will be paid a \nbase salary at the rate of $410,000 per year during the term of your \nemployment, to be paid in installments and in accordance with the Company's \npayroll practices. As with other officers of the Company, your annual \ncompensation, which includes this base salary and bonus, will be reviewed \nannually by the Board of Directors of the Company.\n\n\n\n     3.  BONUS: In addition to the base salary, bonus and other compensation \nto which you are or may be entitled under this Agreement, you will receive a \ncash bonus (the 'Bonus'), to be paid on the dates and in the amounts set \nforth below.\n\n\n\n\n                        DATE              BONUS AMOUNT\n                        ----              ------------\n                                       \n                   March 31, 1998           $70,000\n                   March 31, 2000           $63,000\n                   March 31, 2002           $56,500\n\n\n\n     The Company's obligation to pay any installment of the Bonus to you will \nbe conditioned on your continued employment with the Company on the relevant \npayment date; provided, however, that all Bonus payments shall become due and \npayable immediately on the terms and subject to the conditions set forth in \nSection 7a below.\n\n     4.  BENEFITS; EXPENSES: You will be entitled to receive the Company's \nemployee benefits made available to other employees and officers to the full \nextent of your eligibility. You shall be reimbursed for all reasonable \nbusiness and travel expenses actually incurred by you in the performance of \nyour services on behalf of the Company, in accordance with the Company's \nexpense reimbursement policy as from time to time in effect and determined \nby the Board of Directors.\n\n     5.  LOANS: As of the earlier of your last date of employment with the \nCompany and July 21, 1998, the Company will forgive $560,000 of the loan made \nby Navio to you that is secured by your primary residence.\n\n     6.  REPURCHASE RIGHT:\n\n         a.     Subject to the provisions of Section 7, in the event of the \ntermination of your employment with the Company before June 15, 1998, the \nCompany shall upon the date of such termination (the 'Termination Date') have \nan irrevocable, exclusive option (the 'Repurchase Option') for a period of 90 \ndays from such date to repurchase all or any portion of the Unvested Shares \nof Series C Preferred Stock (the 'Series C Preferred') of the Company (or \nshares of Common Stock received upon conversion of such Series C Preferred). \nFor purposes of this Section 6, Unvested Shares shall mean one half of the \nnumber of shares of Series C Preferred Stock received by you in the Merger. \nOne third of such Unvested Shares shall become vested on February 12, 1998. \nIn addition, one-tenth of one-third of such Unvested Shares shall become \nvested for each 500,000 copies of the Company's products distributed in \nbundled or unbundled form in accordance with the Company business strategy \n(excluding any distribution not for value unless approved in concept by the \nCompany's Chief Executive Officer or a majority of the Company's Board of \nDirectors) subject in each case to your continued employment with the Company \non the date any such distribution milestone is achieved. Notwithstanding the \nforegoing, if you are an employee of the Company on June 15, 1998, then on \nsuch date all shares of Series C Preferred Stock of the Company (or shares of \nCommon Stock received upon conversion of such Series C Preferred Stock) shall \nbe fully vested and the Company shall have no Repurchase Option with respect \nto such shares or cash.\n\n                                   -2-\n\n\n\n          b.   The Repurchase Option may be exercised by the Company by \nwritten notice to you accompanied by delivery of a check payable to you in an \namount equal to the dollar equivalent of the aggregate purchase price paid by \nyou for the shares of Navio capital stock exchanged for the Unvested Shares \nbeing repurchased (the 'Repurchased Shares'). Upon delivery of such notice \nand the payment described above, the Company shall become the legal and \nbeneficial owner of the Repurchased Shares and all rights and interest \ntherein or related thereto, and the Company shall have the right to transfer \nto its own name the Repurchased Shares, without further action by you.\n\n          c.   The certificate or certificates representing the Unvested \nShares shall bear the following legends (as well as any legends required by \napplicable state and federal corporate and securities laws or required to be \nplaced thereon by the California Commissioner of Corporations):\n\n          THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED \n          UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR \n          INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE \n          OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED \n          WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN \n          OPINION OF COUNSEL FOR THE COMPANY THAT SUCH REGISTRATION IS NOT \n          REQUIRED UNDER THE SECURITIES ACT OF 1933.\n\n          THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY \n          IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY \n          AND THE STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY \n          OF THE COMPANY.\n\n          You agree that the Unvested Shares may not be transferred while \nsubject to the Repurchase Option, and that in order to ensure compliance with \nthe restrictions referred to herein, the Company may issue appropriate 'stop \ntransfer' instructions to its transfer agent, if any, to prevent any transfer \nduring such period.\n\n          d.   The Repurchase Option may be assigned in whole or in part to \nany stockholder or stockholders of the Company, including Oracle Corporation, \nor other persons or organizations; provided, however, that an assignee, other \nthan a corporation that is the parent or a 100% owned subsidiary of the \nCompany, must pay the Company, upon assignment of such right, cash equal to \nthe difference between the original purchase price and fair market value, if \nthe original purchase price is less than the fair market value of the \nRepurchased Shares subject to the assignment.\n\n          e.   As security for your faithful performance of this Agreement, \nyou agree to deliver the stock certificate(s) (or cash amounts) evidencing \nthe Unvested Shares, together with the stock powers executed by you and by \nyour spouse, if any (with the date, name of transferee,\n\n                                      -3-\n\n\nstock certificate number and number of Unvested Shares left blank), to the \nSecretary of the Company or other designee of the Company ('Escrow Holder'), \nwho is hereby appointed to hold such certificate(s) and stock powers (or \ncash) in escrow and to take all such actions and to effectuate all such \ntransfers and\/or releases of such Unvested Shares as are in accordance with \nthe terms of this Agreement. Any dividends declared and interest accrued on \nsuch Unvested Shares shall accrue and be paid out at the time the Unvested \nShares (or cash amounts) are released from escrow in accordance with the \nterms of this Agreement. You and the Company agree that Escrow Holder will \nnot be liable to any party to this Agreement (or to any other party) for any \nactions or omissions unless Escrow Holder is grossly negligent or \nintentionally fraudulent in carrying out the duties of Escrow Holder. Escrow \nHolder may rely upon any letter, notice or other document executed by any \nsignature purported to be genuine and may rely on the advice of counsel and \nobey any order of any court with respect to the transactions contemplated by \nthis Agreement. The Unvested Shares will be released from escrow upon \ntermination of the Repurchase Option.\n\n          f.   This Section 6 shall replace and supersede Section 3(a) of the \nCommon Stock Purchase Agreement between you and Navio dated as of July 9, \n1996, and such Section 3(a) shall be of no further force and effect.\n\n     7.   TERMINATION:\n\n          a.   In the event that (i) before June 15, 1998, your employment is \ninvoluntarily terminated for any reason other than 'for cause' (as defined \nherein) or Constructively Terminated (as defined below), or (ii) on June 15, \n1998, you shall be entitled to the following benefits:\n\n               aa.   A severance payment equal to $820,000, payable in 24 \nequal monthly installments;\n\n               bb.   The termination of the Company's Repurchase Option;\n\n               cc.   A payment in an amount equal to that portion of the \nBonus payable pursuant to Section 3 above that has not been paid (and in such \nevent no further Bonus payment shall be required to be made).\n\n          b.   For purposes of the foregoing, termination 'for cause' shall \nmean (i) the willful failure by you substantially to perform your material \nduties after a written demand for substantial performance is delivered to you \nby the CEO or the Board of Directors which specifically identifies the manner \nin which the Board of Directors believes that you have not substantially \nperformed your material duties (including without limitation the failure by \nyou to follow any reasonable specific directive established by the CEO and of \nwhich you are given notice), which failure to perform continues for 30 days \nafter such written notice (or, if longer than 30 days is reasonably required \nto cure, where such failure to perform continues beyond the end of the period \nreasonably required to cure, provided that such extension of the cure period \nbeyond 30 days will apply only if you diligently seek to cure during such \nextension period and further provided that in no event shall the total period \nto cure exceed 60 days); (ii) bad faith\n\n                                      -4-\n\n\n\n\n\nconduct related to the Company or the performance of your material duties for \nthe Company; or (iii) the conviction of you of any crime involving the \nproperty or business of the Company or its subsidiaries or Oracle or its \nsubsidiaries. The fact that the Company does not achieve specified research \nand development milestones or financial targets shall not by itself be deemed \nto be a basis for termination 'for cause,' unless the reason that such \nmilestones or targets were not achieved is directly and materially \nattributable to conduct (or lack of conduct) contemplated by clauses (i), \n(ii) or (iii) above.\n\n          c.  For purposes of the foregoing, your employment with the Company \nshall be deemed to have been 'Constructively Terminated' if there shall occur \n(i) a material reduction in base salary (other than a reduction applicable to \nall officers), (ii) a material change in responsibility or authority, (iii) \nany change in your job location outside the San Francisco Bay Area without \nyour consent, (iv) your permanent disability, expected to last longer than 180 \ndays, as certified by a medical professional, or (v) the Company's breach of \nany of its material obligations to you, including any failure to pay amounts \ndue or provide benefits to which you are entitled hereunder or under Company \npolicy.\n\n     8.  PROPRIETARY INFORMATION AGREEMENT. You agree to be bound by the \nterms of the employee proprietary information agreement with the Company in \nthe form attached hereto as EXHIBIT A. If the provisions of such agreement \nconflict with the terms of Section 9(a) of this Agreement, then the terms of \nthis Agreement shall prevail.\n\n     9.  NONCOMPETITION AGREEMENT.\n\n          a.  Prior to the earlier of (i) June 15, 1999 and (ii) the one year \nanniversary of termination of your employment with the Company (the \n'Restricted Period'), without the prior written consent of the Company, you \nagree not to engage as an employee, director, officer, consultant, advisor or \ngreater than 5% shareholder in any entity ('Restricted Entity') anywhere in \nthe world that develops, markets or distributes any products or services that \ncompete with products or services sold or licensed or for which development \nis substantially complete by the Company at or before the time of termination \nof your employment with the Company (the 'Restricted Field') in the \ngeographic area comprising the entire world (the 'Protected Territory'). \nNotwithstanding the foregoing or any other provision of this Agreement, you \nshall be permitted to engage as an employee, director, officer, consultant, \nadvisor or greater than 5% shareholder in any entity whose primary business \nis providing services or developing, marketing or distributing hardware or \nsoftware products for graphics, entertainment or electronic commerce purposes \n(the 'Permitted Activities'); provided, however, that your engagement must be \nlimited to such Permitted Activities, and such Permitted Activities must not \ncompete directly with the Company's Consumer Business. The Company \nacknowledges that you (or your designee) shall own all right, title and \ninterest in the intellectual property rights of technology that you develop \nwhile engaged in the Permitted Activities, so long as any such technology \ndevelopment does not use or infringe any intellectual property rights of the \nCompany or any of its subsidiaries or Oracle or its subsidiaries.\n\n     For the purposes of this Section 9, the term 'Restricted Entity' shall \nnot be deemed to include divisions or business units of a corporation that \nare not engaged in activities in the\n\n\n                                -5-\n\n\n\nRestricted Field. For purposes of this Section 9, the term 'Consumer \nBusiness' shall mean products and related services sold or licensed for the \nconsumer market as either (i) an integrated package of systems software and \napplications software for network computer devices (excluding Apple \nMacintosh and personal computers running Windows '95, Windows NT and their \nsuccessor versions, and limited purpose consumer devices marketed and used \nprimarily for executing game software developed for such devices; provided, \nhowever, that the foregoing exclusion shall not include network computing \ndevices based on WebTV technology or Windows CE) or (ii) server \ninfrastructure for network computers. The term 'systems software' shall \ninclude the following types of component programs: operating systems and \nruntime operating systems (e.g., VxWorks, JavaOS, Chorus, Java Virtual \nMachine, and PSOS), and audio\/visual codecs (e.g., VXtreme and Iterated). \nThe term 'server infrastructure' shall mean any software executed by a server \nthat performs the following functions: registration and authentication of \nusers, personalization of content and services, electronic program guide \n(EPG), and application and content delivery. A 'server' shall mean any \nmachine that receives and processes requests from client devices.\n\n          b.  As a separate and independent covenant, during the Restricted \nPeriod, without the prior written consent of the Company, you hereby agree not \nto take away or interfere with or attempt to interfere with any custom, \ntrade, business or patronage of the Company or its subsidiaries, in the \nRestricted Field, in each case for the purpose of conducting or engaging in \nany business that is operating in the Restricted Field.\n\n          c.  As a separate and independent covenant, during the Restricted \nPeriod, without the prior written consent of the Company, you hereby agree \nnot to, in any way, directly or indirectly, irrespective of the Restricted \nField, hire any employee or consultant of the Company or any of its \nsubsidiaries or Oracle or its subsidiaries, or attempt to induce any employee \nor consultant of the Company or any of its subsidiaries or Oracle or its \nsubsidiaries, to leave the employ of the Company or any of its subsidiaries or \nOracle or its subsidiaries or to violate the terms of their contracts. The \nCompany acknowledges that the provisions of this paragraph do not restrict \nthe activities of any entity for which you are acting if such entity acts \nwithout any involvement from you.\n\n          d.  The Restricted Period shall be extended by the length of any \nperiod during which you are in material breach of the terms of this \nAgreement; provided, however, that in no such event shall the Restricted \nPeriod be extended by more than one (1) year.\n\n          e.  You acknowledge that upon the breach of any of the provisions \nof this Section 9 the Company would sustain irreparable harm, and, therefore, \nyou agree that in addition to any other remedies which the Company may have \nunder this Agreement or otherwise, the Company shall be entitled to obtain \nequitable relief, including specific performance and injunctions restraining \nyou from committing or continuing any such violation of this Agreement.\n\n\n                                  -6-\n\n\n\n          f.  You represent that you are familiar with the covenants \ncontained in this Section 9, and are fully aware of your obligations \nhereunder. You hereby acknowledge that the covenants and agreements set forth \nin this Section 9 are an essential element of the Merger and the Option and \nthat, but for your agreement to comply with these covenants, the Company \nwould not have entered into this Agreement, the Merger Agreement under which \nthe Company acquired Navio or the other agreements contemplated by the Merger \nAgreement. You acknowledge that the period of restrictions and the geographic \narea to which the restrictions imposed in Section 9 hereof shall apply are \nfair and reasonable and are reasonably required for the protection of the \nCompany. If any provision of this Agreement is held to be invalid or \nunenforceable by judicial order for any reason, such action shall not affect \nthe enforceability of the remaining provisions hereof and, without limiting \nthe foregoing, any such holdings shall in no event preclude the Company from \nenforcing the provisions hereof for such term, in such territory and to such \nextent non inconsistent with or prohibited by said judicial order. If the \nprovisions of this Agreement should ever be deemed to exceed the time, scope \nor geographic limitations permitted by applicable law, then such provisions \nshall be reformed to the maximum time, scope or geographic limitations, as \nthe case may be, permitted by applicable laws.\n\n     10. SUCCESSORS. The Company shall require any successor or assignee, in \nconnection with any sale, transfer or other disposition of all or \nsubstantially all of the Company assets or business, whether by purchase, \nmerger, consolidation or otherwise, expressly to assume and agree to perform \nthe Company's obligations under this agreement in the same manner and to the \nsame extent that the Company would be required to perform if no such \nsuccession or assignment had taken place. In such event, the term 'Company,' \nas used in this agreement, shall mean the Company as defined above and any \nsuccessor or assignee to the business and assets which by reason hereof \nbecomes bound by the terms and provisions of this agreement, except that for \npurposes of Section 9 (Noncompetition Agreement), the 'Company' shall include \nonly the business and the products and services of the Company in existence \nat the time of any such succession or assignment.\n\n     11. ARBITRATION. Any claim, dispute or controversy arising out of this \nAgreement, the interpretation, validity or enforceability of this Agreement \nor the alleged breach thereof shall be submitted by the parties to binding \narbitration by the American Arbitration Association in Santa Clara County, \nCalifornia; provided, however, that this arbitration provision shall not \npreclude either party from seeking injunctive relief from any court having \njurisdiction with respect to any disputes or claims relating to or arising \nout of the misuse or misappropriation of the Company's trade secrets or \nconfidential and proprietary information. All costs and expenses of \narbitration or litigation, including but not limited to attorneys' fees and \nother costs and expenses of arbitration or litigation, including but not \nlimited to attorneys' fees and other costs reasonably incurred by you, shall \nbe paid by the Company. Judgment may be entered on the award of the \narbitration in any court having jurisdiction.\n\n\n                                    -7-\n\n\n     12. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement \nbetween the parties hereto PARTICIPATING to the subject matter hereof, and \nsupersedes any and all other prior written or oral agreements existing \nbetween the parties hereto, including without limitation the letter dated \nJune 5, 1997 (other than the provisions of the second paragraph of Section 7 \nof such letter which paragraph shall remain in effect) from the Company to \nyou and the letter agreement dated May 16, 1997 from the Company to you. The \nEmployment Agreement dated July 9, 1996 between you and Navio shall be deemed \nterminated and superseded by this Agreement and, except as specifically set \nforth in this Agreement, you shall not be entitled to any of the benefits set \nforth in Section 7(a) of such Employment Agreement. The foregoing \nnotwithstanding, the parties may agree to amend the terms of this Agreements \nand enter into new business arrangements by mutual written consent.\n\n     13. GOVERNING LAW. This agreement shall be governed by and construed in \naccordance with the laws of the State of California applicable to agreements \nmade and to be performed entirely within such state.\n\n\n\n\n                                     -8-\n\n\nWei, we are excited about having you as a leader of the Company team. Please \nacknowledge acceptance of this offer by signing and returning the enclosed \ncopy of this letter, whereupon it shall become a binding agreement.\n\n                                       Very truly yours,\n                                       \n                                       NETWORK COMPUTER, INC.\n                                       \n                                       \/s\/ Jerry Baker\n                                       --------------------------------------\n                                       Jerry Baker, Chief Executive Officer\n\n\n\nAccepted and agreed to by:\n\n\/s\/ Wei Yen\n--------------------------------------\nWei Yen\n\n\n                    SIGNATURE PAGE TO EMPLOYMENT AGREEMENT\n\n                                    -9-\n\n\n                                                                    EXHIBIT A\n\n                             NETWORK COMPUTER, INC.\n                          PROPRIETARY INFORMATION AND\n                       ASSIGNMENT OF INVENTIONS AGREEMENT\n\n     In exchange for my becoming employed (or my employment being continued) \nby or retained as a consultant (or my consulting relationship being \ncontinued) by Network Computers, Inc., or its subsidiaries, affiliates, or \nsuccessors (hereinafter referred to collectively as the 'Company'), I hereby \nagree as follows:\n\n     1.   I will perform for the Company such duties as may be designated by \nthe Company from time to time. During my period of employment or consulting \nrelationship with the Company, I will devote my beset efforts to the \ninterests of the Company and will not engage in other employment or in any \nactivities detrimental to the best interests of the Company without the prior \nwritten consent of the Company. I agree that my employment or consulting \narrangement with the Company is on an 'at will' basis, and may be terminated \nby me or the Company at any time, with or without cause.\n\n     2.   As used in this Agreement, the term 'Inventions' means designs, \ntrademarks, discoveries, formulae, processes, manufacturing techniques, trade \nsecrets, inventions, improvements, ideas, business plans or strategies, or \ncopyrightable works, including all rights to obtain, register, perfect and \nenforce these proprietary interests; provided that the term 'Inventories' \nshall not be deemed to include those inventions, if any, listed on EXHIBIT A \nattached to this Agreement.\n\n     3.   As used in this Agreement, the term 'Confidential Information' \nmeans information pertaining to any aspects of the Company's business which \nis either information not known by actual or potential competitors of the \nCompany or is proprietary information of the Company or its customers or \nsupporters, whether relating to the Company's technology, business \nrelationships, customers or otherwise. The term 'Confidential Information' \nshall not, however, include any information described in the last sentence of \nthe first paragraph of Section 9.a. of the Employment Agreement.\n\n     4.   Without further compensation, I hereby agree promptly to disclose \nto the Company, and I hereby assign and agree to assign to the Company or its \ndesignee, my entire right, title, and interest in and to all Inventions which \nI may solely or jointly develop or reduce to practice during the period of my \nemployment or consulting relationship with the Company (a) which pertain to \nany line of business activity of the Company, (b) which are aided by the use \nof time, material or facilities of the Company, whether or not during working \nhours; or (c) which relate to any of my work during the period of my \nemployment or consulting relationship with the Company, whether or not during \nnormal working hours. No rights are hereby conveyed in Inventions, if any, \nmade by me prior to my employment or consulting relationship with the Company \nwhich are identified in a sheet attached to and made a part of this \nAgreement, if any (which attachment contains no confidential information).\n\n     5.   I agree to perform during and after my employment or consulting \nrelationship, all acts deemed necessary or desirable by the Company to permit \nand assist it, at its expense, in obtaining and enforcing the full benefits, \nenjoyment, rights and title throughout the world in the Inventions hereby \nassigned to the Company as set forth in paragraph 4 above. Such acts may \ninclude, but are not limited to, execution of documents and assistance or \ncooperation in legal proceedings.\n\n\n\n     6.   If the Company is unable for any reason to secure my signature to \napply for or to pursue any application for any United States or foreign \nletters patent or mask work or copyright registration covering inventions, \nask works or original works or authorship assigned to the Company as above, \nthen I hereby irrevocably designate and appoint the Company and its duly \nauthorized officers and agents as my agent and attorney in fact, to act for \nand in my behalf and stead to execute and file any such applications and to \ndo all other lawfully permitted acts to further the prosecution and issuance \nof letters patent and mask work or copyright registrations thereon with the \nsame legal force and effect as if executed by me. I hereby waive and \nquitclaim to the Company any and all claims, of any nature whatsoever, which \nI now or may hereafter have for infringement of any patents, mask works or \ncopyrights resulting from any such application for letters patent or mask \nwork or copyright registrations assigned hereunder to the Company.\n\n     7.   I agree to hold in confidence and not directly or indirectly to use \nor disclose, either during or after termination of my employment or \nconsulting relationship with the Company, any Confidential Information I \nobtain or create during the period of my employment or consulting \nrelationship, whether or not during working hours, except to the extent \nauthorized by the Company until such Confidential Information becomes \ngenerally known. I agree not to make copies of such Confidential Information \nexcept as authorized by the Company. Upon termination of my employment or \nconsulting relationship or upon an earlier request of the Company, I will \nreturn or deliver to the Company all tangible forms of such Confidential \nInformation in my possession or control, including but not limited to \ndrawings, specifications, documents, records, devices, models or any other \nmaterial and copies or reproductions thereof.\n\n     8.   I represent that my performance of all the terms of this Agreement \nand as an employee of or consultant to the Company does not and will not \nbreach any agreement to keep in confidence proprietary information, knowledge \nor data acquired by me in confidence or in trust prior to my becoming an \nemployee or consultant of the Company, and I have not previously and will not \nat any future time disclose to the Company, or induce the Company to use, \nany confidential or proprietary information or material belonging to any \nprevious employer or others. I agree not to enter into any agreement either \nwritten or oral in conflict with the provisions of this Agreement, and I \ncertify that, to the best of my knowledge, I am not a party to any other \nagreement which will interfere with my full compliance with this Agreement.\n\n     9.   Without limiting any other provisions of this Agreement, I agree \nthat for one (1) year after the date of termination of my employment by the \nCompany I will not (i) induce any employee of the Company to leave the employ \nof the Company or (ii) solicit the business of any client or customer of the \nCompany (other than on behalf of the Company) in a manner competitive with \nthe Company. However, in the event that this Section 9 conflicts with or is \nmore restrictive than Section 9.c. of the Employment Agreement, then Section \n9.c. of the Employment Agreement shall control and prevail.\n\n    10.   This Agreement (a) shall survive my employment by or consulting \nrelationship with the Company, (b) does not in any way restrict my right or \nthe right of the Company to terminate my employment or consulting \nrelationship, (c) inures to the benefit of successors and assigns of the \nCompany, and (d) is binding upon my heirs and legal representatives.\n\n    11.   Because my services are personal and unique and because I may have \naccess to and become acquainted with the Confidential Information of the \nCompany, the Company shall have the right to enforce this Agreement and any \nof its provisions by injunction, specific\n\n\n\nperformance or other equitable relief, without prejudice to any other rights \nand remedies that the Company may have for a breach of this Agreement.\n\n    12.   If one or more of the provisions in this Agreement are deemed \nunenforceable by law, then the remaining provisions will continue in full \nforce and effect.\n\n    13.   This Agreement does not apply to an Invention which qualifies fully \nunder the provisions of Section 2870 of the Labor Code, a copy of which is \nattached hereto as EXHIBIT B. I agree to disclose all Inventions made by me \nin confidence to the Company to permit a determination as to whether or not \nthe Inventions should be the property of the Company.\n\n    14.   The provisions of this Agreement shall apply to the entire term of \nmy employment or consulting relationship with the Company, including all such \nperiods prior to the date of this Agreement.\n\n    15.   I certify and acknowledge that I have carefully read all of the \nprovisions of this Agreement and that I understand and will fully and \nfaithfully comply with such provisions.\n\nDated:   4\/30\/98                       EMPLOYEE\n      ----------------------------\n\n                                       \/s\/ Wei Yen\n                                       ---------------------------------------\n                                       Signature\n\n\n                                       Wei Yen\n                                       ---------------------------------------\n                                       Printed Name\n\n\n                                       NETWORK COMPUTER, INC.\n\n\n                                       By: [ILLEGIBLE]\n                                          ------------------------------------\n\n                                       Title:  CEO\n                                             ---------------------------------\n\n\n\n                                   EXHIBIT A\n\nIf none, initial here: _________\n\nOtherwise, list inventions below:\n\nAll 'Inventions' described in the last sentence of the first paragraph of \nSection 9.a. of the Employment Agreement dated October 17, 1998, as amended \nFebruary 27, 1998 ('Employment Agreement') between the Company and me shall \nNOT be deemed 'Inventions' for purposes of this Agreement and shall be \nexcluded from the definition thereof.\n\n\n\n                                    EXHIBIT B\n\nSection 2870 of the California Labor Code is as follows:\n\n     (a)  Any provision in an employment agreement which provides that an \nemployee shall assign, or offer to assign, any of his or her rights in an \ninvention to his or her employer shall not apply to an invention that the \nemployee developed entirely on his or her own time without using the \nemployer's equipment, supplies, fees or trade secret information except for \nthose inventions that either:\n\n          (1)  Relate at the time of inception or reduction to practice of \nthe invention to the employer's business, or actual or demonstrated anticipated \nresearch or development of the employer.\n\n          (2)  Result from any [ILLEGIBLE] by the employee for the employer.\n\n     (b)  To the extent a provision [ILLEGIBLE] agreement purports to require \nan employee to assign an invention [ILLEGIBLE] being required to be assigned \nunder subdivision (a), the provision is against the [ILLEGIBLE] policy of this \nstate and is unenforceable.\n\n\n\n\n\n\n\n\n\n\n\n\n                                      -2-\n\n\n\n                               AMENDMENT NO. 1\n\n                                       TO\n\n                             EMPLOYMENT AGREEMENT\n\n     This Amendment No. 1 (the 'AMENDMENT') is entered into as of February \n27, 1998 between Network Computer, Inc., a Delaware corporation (the \n'COMPANY') and Wei Yen, and amends that certain Employment Agreement (the \n'AGREEMENT') entered into as of October 17, 1997 between the Company and Wei \nYen. Capitalized terms used herein have the meanings provided in the \nAgreement.\n\n                                    RECITALS\n\n     WHEREAS, Wei Yen voluntarily resigned his position as President of NCI, \n     effective February 24, 1998, approximately three months prior to the \n     June 15, 1998 date contemplated in the Agreement;\n\n     WHEREAS, Wei Yen shall continue to serve as a Director of the Company;\n\n     WHEREAS, Wei Yen acknowledges that the payment schedule of the \n     Promissory Note, dated July 9, 1996 (the 'Promissory Note'), in the \n     amount of $150,000.00, shall be accelerated as a result of the \n     termination of his employment with the Company; and\n\n     WHEREAS, the Company has agreed to accelerate the vesting of certain of \n     the severance benefits provided for in the Agreement in exchange for a \n     release of all claims relating to Wei Yen's employment relationship with \n     the Company pursuant to a Settlement Agreement and Release of All Claims \n     (the 'Settlement Agreement').\n\n     NOW THEREFORE, in consideration of the foregoing and the mutual \nagreements, representations, warranties and covenants set forth below, Wei \nYen and the Company agree as follows:\n\n     SECTION 1  Date Change.\n                ------------\n\n          All references to the date 'June 15, 1998' in the Agreement hereby \nare amended to be 'February 24, 1998'.\n\n     SECTION 2  Director.\n                ---------\n\n          The third paragraph of Section 1 of the Agreement is hereby amended \nand restated in its entirety to read as follows:\n\n     'You will continue to serve on the Company's Board of Directors until \nyour successor is duly appointed, or until your earlier resignation or \nremoval.'\n\n     SECTION 2  Loans.\n                ------\n\n          Section 5 of the Agreement hereby is amended and restated in its \nentirety to read as follows:\n\n     'As of the earlier of your last date of employment with the Company and \n     July 21, 1998, the Company will forgive $560,000 of the loan made by \n     Navio to you that is secured by your primary residence (the 'Primary \n     Residence Loan'); provided that you understand that forgiveness of the \n     Primary Residence Loan is treated as compensation for tax purposes. The \n     Company shall be entitled to offset (i) any tax withholding obligations \n     related to the forgiveness of the Primary Residence Loan and any \n     outstanding principal or accrued interest due on the Promissory Note \n     against (ii) any severance payment that may be owed to you pursuant to \n     Section 7(a)(aa).'\n\n     SECTION 3  Proprietary Information Agreement.\n                ----------------------------------\n\n          You agree to be bound by the terms of the employee proprietary \ninformation agreement with the Company in the form attached hereto as Exhibit \nA. If the provisions of such agreement conflict with the terms of Section \n9(a) of the Agreement, then the terms of the Agreement shall prevail.\n\n     SECTION 4  Cross Default.\n                --------------\n\n          Any default under the Settlement Agreement shall be a default under \nthe Agreement, as amended by this Amendment.\n\n\n\n\n\n\n                                      [SIGNATURE PAGE FOLLOWS]\n\n\n\n                                     -2-\n\n\n\n     IN WITNESS WHEREOF, this Amendment has been duly executed and delivered \nby the parties hereto as of the date first above written.\n\n\n                                   Network Computer, Inc.\n\n\n                                            \/s\/ DAVID J. ROUX\n                                   By: ---------------------------\n                                       David J. Roux\n                                       CHIEF EXECUTIVE OFFICER\n\n\n\n                                   [ILLEGIBLE]\n\n\n\n\n\n\n\n\n\n\n\n                                     -3-\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8051],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9539,9544],"class_list":["post-39408","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-liberate-technologies","corporate_contracts_industries-technology__software","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39408","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39408"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39408"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39408"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39408"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}