June 22, 2011
\nMaurice Leibenstern<\/p>\n
Dear Maurice:<\/p>\n
Based on our amicable understanding to separate as of the Separation Date
\nbelow, this Separation Agreement (the “Agreement”) sets forth the terms of your
\nseparation from employment with Silicon Graphics International Corp. (the
\n“Company”).<\/p>\n
1. Employment Status and Final Payments.<\/strong><\/p>\n (a) Separation Date. <\/strong>Your last day of work with the Company (b) Accrued Salary and PTO.<\/strong> On the Separation Date, the (c) Expense Reimbursements.<\/strong> You shall submit expense reports 2. Severance Benefits.<\/strong> The Company shall provide the (a) Base Salary.<\/strong> The Company shall provide you, as (b) Health Insurance.<\/strong> To the extent provided by the federal monthly premium payments ceases immediately if you become eligible for group (c) Equity Vesting.<\/strong> The Company will partially accelerate Grant Date<\/p>\n<\/td>\n Grant #<\/p>\n<\/td>\n Number of Shares to be Accelerated<\/p>\n<\/td>\n<\/tr>\n 9\/3\/2010<\/p>\n<\/td>\n 2003<\/p>\n<\/td>\n 4,000 Restricted Stock Units<\/p>\n<\/td>\n<\/tr>\n 8\/11\/2009<\/p>\n<\/td>\n 1,840<\/p>\n<\/td>\n 6,875 Nonqualified Stock Options<\/p>\n<\/td>\n<\/tr>\n 2\/1\/2008<\/p>\n<\/td>\n 1,460<\/p>\n<\/td>\n 14,063 Restricted Stock Units<\/p>\n<\/td>\n<\/tr>\n 10\/1\/2007<\/p>\n<\/td>\n 1,356<\/p>\n<\/td>\n 4,688 Nonqualified Stock Options<\/p>\n<\/td>\n<\/tr>\n 10\/1\/2007<\/p>\n<\/td>\n 1,355<\/p>\n<\/td>\n 782 Restricted Stock Units<\/p>\n<\/td>\n<\/tr>\n Total:<\/p>\n<\/td>\n 30,408<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n <\/p>\n The Restricted Stock Units (RSUs) set forth above, net of shares to cover tax (d) Pro-rata Quarterly Bonus.<\/strong> Even though you have not 3. Other Compensation or Benefits.<\/strong> You acknowledge that, 4. Return Of Company Property.<\/strong> By June 22, 2011, you agree property and information. If you have used any personally owned computer, 5. Proprietary Information Obligations.<\/strong> You agree to refrain 6. Nondisparagement. <\/strong>You agree not to disparage the Company, 7. Cooperation and Assistance. <\/strong>You agree that you will not 8. No Admissions.<\/strong> You understand and agree that the promises 9. Release of Claims.<\/strong><\/p>\n (a) General Release.<\/strong> In exchange for the consideration under (b) Scope of Release. <\/strong>The Released Claims include, but are bonuses, commissions, vacation pay, expense reimbursements, severance pay, (c) Excluded Claims.<\/strong> Notwithstanding the foregoing, the 10. ADEA Waiver.<\/strong> You hereby acknowledge that you are 11. Section 1542 Waiver.<\/strong> In giving the release herein, which 12. Representations.<\/strong> You hereby represent that you have suffered any on-the-job injury for which you have not already filed a 13. Dispute Resolution.<\/strong> To ensure rapid and economical 14. Miscellaneous.<\/strong> This Agreement, including Exhibit A (the If this Agreement is acceptable to you, please sign below and return to the We wish you the best in your future endeavors.<\/p>\n Sincerely,<\/p>\n Silicon Graphics International Corp.<\/strong><\/p>\n By: \/s\/ Jennifer Pratt Jennifer L. Pratt, SVP Human I have read, understand and agree fully to the foregoing \/s\/ Maurice Leibenstern Maurice Leibenstern<\/p>\n June 22, 2011 Date<\/p>\n Exhibit A – Proprietary Information and Inventions Agreement<\/strong>\n<\/p>\n RACKABLE SYSTEMS, INC.<\/strong><\/p>\n EMPLOYEE PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT<\/strong>\n<\/p>\n In consideration of my employment by Rackable Systems, Inc., a Delaware 1. Proprietary Information.<\/em><\/strong><\/p>\n (a) Confidential Restrictions<\/u>. I agree to hold in strict confidence (b) Third Party Information<\/u>. I recognize that the Company has received (c) Interference with Business<\/u>. I hereby acknowledge that pursuit of with the Company (or any affiliate of it that might be formed). I understand 2. Inventions.<\/em><\/strong><\/p>\n (a) Defined; Statutory Notice<\/u>. I understand that during the term of my (1) Relate at the time of conception or reduction to practice of the (b) Records of Invention Ideas<\/u>. I agree to maintain adequate and (c) Assignment<\/u>. I agree to assign to the Company, without further copyrights, or other rights or protections with the same force and effect as (d) Exclusions<\/u>. Except as disclosed in Exhibit A, there are no ideas, (e) Post-Termination Period<\/u>. I acknowledge that because of the I understand that nothing in this Agreement is intended to expand the scope 3. Former or Conflicting Obligations<\/em><\/strong>. During my 4. Notification Rights of the Company<\/strong><\/em>. I further 5. Government Contracts<\/strong><\/em>. I understand that the the government under which certain intellectual property rights will be 6. Termination<\/strong><\/em>. I hereby acknowledge and agree that 7. Miscellaneous Provisions<\/em><\/strong>.<\/p>\n (a) Assignment<\/u>. I agree that the Company may assign to another person (b) Governing Law; Severability<\/u>. The validity, interpretation, (c) Entire Agreement<\/u>. The terms of this Agreement are the final (d) Application of this Agreement<\/u>. I hereby agree that my obligations [The remainder of this page left intentionally blank; signature IN WITNESS WHEREOF, the parties hereto have caused this Employee Proprietary Date: 9\/19\/07<\/p>\n<\/td>\n \/s\/ MAURICE LEIBENSTERN<\/p>\n<\/td>\n<\/tr>\n Signature<\/p>\n<\/td>\n<\/tr>\n Maurice Liebenstern<\/p>\n<\/td>\n<\/tr>\n Printed Name<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n <\/p>\n EXHIBIT A<\/strong><\/p>\n Employee’s Prior Inventions<\/strong><\/p>\n Except as set forth below, there are no ideas, processes, trademarks, service [write NONE if there are none]<\/p>\n None<\/p>\n Date: 9\/19\/07<\/p>\n<\/td>\n \/s\/ MAURICE LEIBENSTERN<\/p>\n<\/td>\n<\/tr>\n Signature<\/p>\n<\/td>\n<\/tr>\n Maurice Liebenstern<\/p>\n<\/td>\n<\/tr>\n Printed Name<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8831],"corporate_contracts_industries":[9508],"corporate_contracts_types":[9539,9551],"class_list":["post-40471","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-silicon-graphics-international-corp","corporate_contracts_industries-technology__hardware","corporate_contracts_types-compensation","corporate_contracts_types-compensation__severance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40471","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=40471"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40471"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40471"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40471"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
\nand your employment termination date will be June 22, 2011 (the “Separation
\nDate”). As of the Separation Date, your salary will cease, and any entitlement
\nyou have or might have under any Company-provided benefit plan, program,
\ncontract or practice (each a “Benefit Program”) will terminate, except (i) as
\nrequired by the terms of an applicable Benefit Program or any applicable federal
\nor state law, or (ii) as otherwise described below.<\/p>\n
\nCompany will pay you all accrued salary, and all accrued and unused paid time
\noff (PTO) earned through the Separation Date, subject to standard payroll
\ndeductions and withholdings. You are entitled to these payments by law.<\/p>\n
\nto the Company seeking reimbursement for any business expenses incurred through
\nthe Separation Date within thirty (30) days after the Separation Date. The
\nCompany will reimburse you for these business expenses, pursuant to its standard
\npolicies and practices, within fifteen (15) business days after the submission
\nof your expense report.<\/p>\n
\nfollowing sole severance benefits (the “Severance Benefits”), if you timely
\nsign, date and return this fully executed Agreement to the Company, and allow
\nthe releases contained herein to become effective (as defined in Section 10:\n<\/p>\n
\nseverance, the equivalent of twelve (12) months of your base salary. The
\nseverance pay will be subject to required payroll deductions and withholdings,
\nand will be paid in twenty-six (26) equal installments over a period of twelve
\n(12) months. (“Severance Payments”). The Severance Payments will be paid on the
\nCompany’s regular payroll cycle beginning on the first regularly-scheduled
\npayroll date after the Effective Date of this Agreement as defined in paragraph
\n10 below, provided you have fulfilled your obligation to return Company property
\nunder Paragraph 4 of this Agreement.<\/p>\n
\nCOBRA law or, if applicable, state insurance laws (collectively, “COBRA”), and
\nby the Company’s current group health insurance policies, you will be eligible
\nto continue your group health insurance benefits at your own expense after the
\nSeparation Date. Later, you may be able to convert to an individual policy
\nthrough the provider of the Company’s health insurance, if you wish. You will be
\nprovided with a separate notice describing your rights and obligations under the
\napplicable state and\/or federal insurance laws on or after the Separation Date.
\nAlthough the Company is not otherwise obligated to do so, if you timely elect to
\ncontinue group health coverage after the Separation Date pursuant to COBRA, the
\nCompany will reimburse your COBRA premium payments (or, at its sole discretion,
\nprovide you with a prepayment of such premiums) sufficient to continue your
\ngroup health coverage at its current level (including dependant coverage, if
\napplicable) for a maximum of twelve (12) months following the Separation Date;
\nprovided, however, that the Company’s obligation to reimburse your<\/p>\n
\n
\nhealth insurance coverage through a new employer at any time within twelve (12)
\nmonths after the Separation Date. You must promptly notify the Company if you
\nbecome eligible for group health insurance coverage through a new employer.<\/p>\n
\nthe vesting of the following outstanding equity awards previously granted to you
\nsuch that the following additional portions of these awards shall be deemed
\nvested as of the Effective Date of this Agreement:<\/p>\n\n\n
\n <\/td>\n<\/tr>\n \n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n <\/td>\n \n
\nwithholding, shall be delivered to you two business days following the
\nannouncement of earnings for the fourth quarter of FY 2011. Except as
\nspecifically modified herein, this equity shall continue to be governed by the
\nterms of the applicable grant notice, stock option or restricted stock
\nagreement, and governing equity plan.<\/p>\n
\nearned a quarterly bonus pursuant to the Company’s Short Term Incentive Plan,
\nthe Company will pay you an amount equal to your target bonus for the current
\nquarter, pro-rated for the number of days you were employed during this quarter.
\nThis lump sum amount will be subject to required deductions and withholdings and
\nwill be paid at the same time as bonuses are paid to current employees for this
\nquarter.<\/p>\n
\nexcept as expressly provided in this Agreement, you have not earned and will not
\nreceive from the Company any additional compensation (including base salary,
\nbonus, incentive compensation, or equity), severance (including any severance
\npursuant to your August 22, 2007 Employment Agreement (as amended on September
\n19, 2007; November 17, 2008; and December 23, 2008)(the “Employment Agreement”),
\nor Silicon Graphics International Corp. Executive Change in Control Severance
\nBenefit Plan (the “Severance Plan”)), or any other benefits before or after the
\nSeparation Date, with the exception of any vested right you may have under the
\nexpress terms of a written ERISA-qualified benefit plan (e.g., 401(k) account)
\nor any vested options.<\/p>\n
\nto return to the Company all Company documents (and all copies thereof) and
\nother Company property which you have in your possession or control, including,
\nbut not limited to, Company files, notes, drawings, records, plans, forecasts,
\nreports, studies, analyses, proposals, agreements, financial information,
\nresearch and development information, sales and marketing information, customer
\nlists, prospect information, pipeline reports, sales reports, operational and
\npersonnel information, specifications, code, software, databases,
\ncomputer-recorded information, tangible property and equipment (including, but
\nnot limited to, computers, facsimile machines, mobile telephones, servers),
\ncredit cards, entry cards, identification badges and keys; and any materials of
\nany kind which contain or embody any proprietary or confidential information of
\nthe Company (and all reproductions thereof in whole or in part). You agree that
\nyou will make a diligent search to locate any such documents,<\/p>\n
\n
\nserver, or e-mail system to receive, store, review, prepare or transmit any
\nCompany confidential or proprietary data, materials or information, by June 22,
\n2011, you shall provide the Company with a computer-useable copy of such
\ninformation and then permanently delete and expunge such Company confidential or
\nproprietary information from those systems; and you agree to provide the Company
\naccess to your system as requested to verify that the necessary copying and\/or
\ndeletion is done. Your timely compliance with this paragraph is a condition
\nprecedent to your receipt of the Severance Benefits provided under this
\nAgreement.<\/p>\n
\nfrom any use or disclosure of the Company’s confidential or proprietary
\ninformation or materials (including, but not limited to, sales and marketing
\ninformation, customer information, product and manufacturing information,
\nfinancial information, personnel and compensation information, and operational
\nand training information). Additionally, you reaffirm your obligation to comply
\nwith the Employee Proprietary Information and Inventions Agreement (the “PIIA”)
\nyou previously signed (attached hereto as Exhibit A), it being understood and
\nagreed between the parties that the providing of legal services to a person who
\nentity which does not compete with the Company will not be deemed a business
\nactivity that is or may be competitive with the Company.<\/p>\n
\nits officers, directors, employees, shareholders, and agents, and the Company
\n(through its officers and directors) agrees not to disparage you, in any manner
\nlikely to be harmful to his\/its business, business reputation, or personal
\nreputation; provided that you and Company will respond accurately and fully to
\nany question, inquiry or request for information when required by legal process.\n<\/p>\n
\nvoluntarily provide assistance, information or advice, directly or indirectly
\n(including through agents or attorneys), to any person or entity in connection
\nwith any claim or cause of action of any kind brought against the Company, nor
\nshall you induce or encourage any person or entity to bring such claims.
\nHowever, it will not violate this Agreement if you testify truthfully when
\nrequired to do so by a valid subpoena or under similar compulsion of law.
\nFurther, you agree to voluntarily cooperate with the Company if you have
\nknowledge of facts relevant to any threatened or pending litigation against the
\nCompany by making yourself reasonably available for interviews with the
\nCompany’s counsel, for preparing for and providing deposition testimony, and for
\npreparing for and providing trial testimony.<\/p>\n
\nand payments in consideration of this Agreement shall not be construed to be an
\nadmission of any liability or obligation by the Company to you or to any other
\nperson, and that the Company makes no such admission.<\/p>\n
\nthis Agreement to which you would not otherwise be entitled, you hereby
\ngenerally and completely release the Company and its directors, officers,
\nemployees, shareholders, partners, agents, attorneys, predecessors, successors,
\nparent and subsidiary entities, insurers, affiliates, and assigns (collectively,
\nthe “Released Parties”) of and from any and all claims, liabilities and
\nobligations, both known and unknown, that arise out of or are in any way related
\nto events, acts, conduct, or omissions occurring prior to or on the date that
\nyou sign this Agreement (collectively, the “Released Claims”).<\/p>\n
\nnot limited to: (a) all claims arising out of or in any way related to your
\nemployment with the Company, or the termination of that employment; (b) all
\nclaims related to your compensation or benefits from the Company, including
\nsalary,<\/p>\n
\n
\nfringe benefits, stock, stock options, or any other ownership interests in the
\nCompany; (c) all claims for breach of contract, wrongful termination, and breach
\nof the implied covenant of good faith and fair dealing; (d) all tort claims,
\nincluding claims for fraud, defamation, emotional distress, and discharge in
\nviolation of public policy; and (e) all federal, state, and local statutory
\nclaims, including claims for discrimination, harassment, retaliation, attorneys’
\nfees, or other claims arising under the federal Civil Rights Act of 1964 (as
\namended), the federal Americans with Disabilities Act of 1990, the federal Age
\nDiscrimination in Employment Act of 1967 (as amended) (the “ADEA”), the
\nCalifornia Labor Code (as amended), and the California Fair Employment and
\nHousing Act (as amended).<\/p>\n
\nfollowing are not included in the Released Claims (the “Excluded Claims”): (a)
\nany rights or claims for indemnification you may have pursuant to any written
\nindemnification agreement with the Company to which you are a party, the
\ncharter, bylaws, or operating agreements of the Company, or under applicable
\nlaw; (b) any rights which are not waivable as a matter of law; or (c) any claims
\narising from the breach of this Agreement. In addition, nothing in this
\nAgreement prevents you from filing, cooperating with, or participating in any
\nproceeding before the Equal Employment Opportunity Commission, the Department of
\nLabor, or the California Department of Fair Employment and Housing or the U.S.
\nSecurities and Exchange Commission, except that you hereby waive your right to
\nany monetary benefits in connection with any such claim, charge or proceeding.
\nYou hereby represent and warrant that, other than the Excluded Claims, you are
\nnot aware of any claims you have or might have against any of the Released
\nParties that are not included in the Released Claims.<\/p>\n
\nknowingly and voluntarily waiving and releasing any rights you may have under
\nthe ADEA, and that the consideration given for the waiver and release you have
\ngiven in this Agreement is in addition to anything of value to which you were
\nalready entitled. You further acknowledge that you have been advised by this
\nwriting, as required by the ADEA, that: (a) your waiver and release do not apply
\nto any rights or claims that may arise after the date you sign this Agreement;
\n(b) you should consult with an attorney prior to signing this Agreement
\n(although you may voluntarily decide not to do so); (c) you have twenty-one (21)
\ndays to consider this Agreement (although you may choose voluntarily to sign
\nthis Agreement sooner); (d) you have seven (7) days following the date you sign
\nthis Agreement to revoke this Agreement (in a written revocation sent to and
\nreceived by the Company’s Human Resource Director); and (e) this Agreement will
\nnot be effective until the date upon which the revocation period has expired,
\nwhich will be the eighth day after you sign this Agreement (the “Effective
\nDate”).<\/p>\n
\nincludes claims which may be unknown to you at present, you acknowledge that you
\nhave read and understand Section 1542 of the California Civil Code, which reads
\nas follows: “A general release does not extend to claims which the creditor does
\nnot know or suspect to exist in his or her favor at the time of executing the
\nrelease, which if known by him or her must have materially affected his or her
\nsettlement with the debtor.” You hereby expressly waive and relinquish all
\nrights and benefits under that section and any law of any other jurisdiction of
\nsimilar effect with respect to your release of claims herein, including but not
\nlimited to your release of unknown claims.<\/p>\n
\nbeen paid all compensation owed and for all hours worked, have received all the
\nleave and leave benefits and protections for which you are eligible pursuant to
\nthe Family and Medical Leave Act, the California Family Rights Act, or
\notherwise, and have not<\/p>\n
\n
\nworkers’ compensation claim.<\/p>\n
\nresolution of any disputes regarding this Agreement, the parties hereby agree
\nthat any and all claims, disputes or controversies of any nature whatsoever
\narising out of, or relating to, this Agreement, or its interpretation,
\nenforcement, breach, performance or execution, your employment with the Company,
\nor the termination of such employment, shall be resolved, to the fullest extent
\npermitted by law, by final, binding and confidential arbitration in San Jose, CA
\nconducted before a single arbitrator by JAMS, Inc. (“JAMS”) or its successor,
\nunder the then applicable JAMS arbitration rules. The prevailing party in any
\nsuch arbitration proceeding shall be entitled to recover their own attorneys’
\nfees and costs. The parties each acknowledge that by agreeing to this
\narbitration procedure, they waive the right to resolve any such dispute, claim
\nor demand through a trial by jury or judge or by administrative proceeding. You
\nwill have the right to be represented by legal counsel at any arbitration
\nproceeding. The arbitrator shall: (i) have the authority to compel adequate
\ndiscovery for the resolution of the dispute and to award such relief as would
\notherwise be available under applicable law in a court proceeding; and (ii)
\nissue a written statement signed by the arbitrator regarding the disposition of
\neach claim and the relief, if any, awarded as to each claim, the reasons for the
\naward, and the arbitrator’s essential findings and conclusions on which the
\naward is based. The arbitrator, and not a court, shall also be authorized to
\ndetermine whether the provisions of this paragraph apply to a dispute,
\ncontroversy, or claim sought to be resolved in accordance with these arbitration
\nprocedures. Nothing in this Agreement is intended to prevent either you or the
\nCompany from obtaining injunctive relief in court to prevent irreparable harm
\npending the conclusion of any arbitration.<\/p>\n
\nPIIA), constitutes the complete, final and exclusive embodiment of the entire
\nAgreement between you and the Company with regard to its subject matter. It is
\nentered into without reliance on any promise or representation, written or oral,
\nother than those expressly contained herein, and it supersedes any other such
\npromises, warranties or representations, including without limitation any
\npromises or representations regarding severance benefits contained in the
\nEmployment Agreement or the Severance Plan. This Agreement may not be modified
\nor amended except in a writing signed by both you and a duly authorized officer
\nof the Company. This Agreement will bind the heirs, personal representatives,
\nsuccessors and assigns of both you and the Company, and inure to the benefit of
\nboth you and the Company, their heirs, successors and assigns. If any provision
\nof this Agreement is determined to be invalid or unenforceable, in whole or in
\npart, this determination will not affect any other provision of this Agreement
\nand the provision in question will be modified so as to be rendered enforceable.
\nThis Agreement will be deemed to have been entered into and will be construed
\nand enforced in accordance with the laws of the State of California without
\nregard to conflict of laws principles. Any ambiguity in this Agreement shall not
\nbe construed against either party as the drafter. Any waiver of a breach of this
\nAgreement shall be in writing and shall not be deemed to be a waiver of any
\nsuccessive breach. This Agreement may be executed in counterparts and facsimile
\nsignatures will suffice as original signatures.<\/p>\n
\nCompany’s Senior Vice President of Human Resources. You have twenty-one (21)
\ncalendar days to decide whether you would like to accept this Agreement, and the
\nCompany’s offer contained herein will automatically expire if you do not sign it
\nwithin this timeframe and return the fully signed Agreement promptly thereafter.\n<\/p>\n
\n
\nResources<\/strong><\/p>\n
\nAgreement:<\/strong><\/p>\n
\n
\ncorporation (formerly known as Rackable Corporation)(together, with my former
\nemployer, Rackable Systems, Inc. and its predecessors, the “Company”), I hereby
\nagree to the following with respect to my use and development of information and
\ntechnology of the Company, as more fully set out below.<\/p>\n
\nand in trust for the sole benefit of the Company all Proprietary Information (as
\ndefined below) that I may have access to during the course of my employment with
\nthe Company and will not disclose any Proprietary Information, directly or
\nindirectly, to anyone outside of the Company, or use, copy, publish, summarize,
\nor remove from Company premises such information (or remove from the premises
\nany other property of the Company) except (i) during my employment to the extent
\nnecessary to carry out my responsibilities as an employee of the Company or (ii)
\nafter termination of my employment, as specifically authorized by the President
\nof the Company. I further understand that the publication of any Proprietary
\nInformation through literature or speeches must be approved in advance in
\nwriting by the President of the Company. “Proprietary Information” shall mean
\nall information and any idea in whatever form, tangible or intangible, whether
\ndisclosed to or learned or developed by me, pertaining in any manner to the
\nbusiness of the Company (or any affiliate of it that might be formed) or to the
\nCompany’s customers, suppliers, licensors and other commercial partners unless:
\n(i) the information is or becomes publicly known through lawful means; (ii) the
\ninformation was rightfully in my possession or part of my general knowledge
\nprior to my employment by the Company; or (iii) the information is disclosed to
\nme without confidential or proprietary restriction by a third party who
\nrightfully possesses the information (without confidential or proprietary
\nrestriction) and did not learn of it, directly or indirectly, from the Company.\n<\/p>\n
\nand in the future will receive from third parties their confidential or
\nproprietary information subject to a duty on the Company’s part to maintain the
\nconfidentiality of such information and to use it only for certain limited
\npurposes. I agree that I owe the Company and such third parties, during the term
\nof my employment and thereafter, a duty to hold all such confidential or
\nproprietary information in the strictest confidence and not to disclose it to
\nany person, firm, or corporation (except as necessary in carrying out my work
\nfor the Company consistent with the Company’s agreement with such third party)
\nor to use it for the benefit of anyone other than for the Company or such third
\nparty (consistent with the Company’s agreement with such third party) without
\nthe express written authorization of the President of the Company.<\/p>\n
\nthe activities forbidden by this Section 1(c) would necessarily involve the use
\nor disclosure of Proprietary Information in breach of Section 1, but that proof
\nof such breach would be extremely difficult. To forestall such disclosure, use,
\nand breach, I agree that for the term of this Agreement and for a period of one
\n(1) year after termination of my employment with the Company, I shall not, for
\nmyself or any third party, directly or indirectly (i) divert or attempt to
\ndivert from the Company (or any affiliate of it that might be formed) any
\nbusiness of any kind in which it is engaged, including, without limitation, the
\nsolicitation of or interference with any of its suppliers or customers; (ii)
\nemploy, solicit for employment, or recommend for employment any person employed
\nby the Company (or by any affiliate of it that might be formed) during the
\nperiod of such person’s employment and for a period of one (1) year thereafter;
\nor (iii) engage in any business activity that is or may be competitive<\/p>\n
\n
\nthat none of my activities will be prohibited under this Section 1(c) if I can
\nprove that the action was taken without the use in any way of Proprietary
\nInformation.<\/p>\n
\nemployment, there are certain restrictions on my development of technology,
\nideas, and inventions, referred to in this Agreement as “Invention Ideas.” The
\nterm Invention Ideas means any and all ideas, processes, trademarks, service
\nmarks, inventions, technology, computer programs, original works of authorship,
\ndesigns, formulas, discoveries, patents, copyrights, and all improvements,
\nrights, and claims related to the foregoing that are conceived, developed, or
\nreduced to practice by me alone or with others except to the extent that
\nCalifornia Labor Code Section 2870 lawfully prohibits the assignment of rights
\nin such ideas, processes, inventions, etc. I understand that Section 2870(a)
\nprovides: 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 employer’s
\nequipment, supplies, facilities, or trade secret information except for those
\ninventions that either:<\/p>\n
\ninvention to the employer’s business, or actual or demonstrably anticipated
\nresearch or development of the employer.
\n(2) Result from any work performed by the employee for the employer.<\/p>\n
\ncurrent written records on the development of all Invention Ideas and to
\ndisclose promptly to the Company all Invention Ideas and relevant records, which
\nrecords will remain the sole property of the Company. I further agree that all
\ninformation and records pertaining to any idea, process, trademark, service
\nmark, invention, technology, computer program, original work of authorship,
\ndesign, formula, discovery, patent, or copyright that I do not believe to be an
\nInvention Idea, but is conceived, developed, or reduced to practice by me (alone
\nor with others) during my period of employment or during the one-year period
\nfollowing termination of my employment, shall be promptly disclosed to the
\nCompany (such disclosure to be received in confidence). The Company shall
\nexamine such information to determine if in fact the idea, process, or
\ninvention, etc., is an Invention Idea subject to this Agreement.<\/p>\n
\nconsideration, my entire right, title, and interest (throughout the United
\nStates and in all foreign countries), free and clear of all liens and
\nencumbrances, in and to each Invention Idea, which shall be the sole property of
\nthe Company, whether or not patentable. In the event any Invention Idea shall be
\ndeemed by the Company to be patentable or otherwise registrable, I will assist
\nthe Company (at its expense) in obtaining letters patent or other applicable
\nregistrations thereon and I will execute all documents and do all other things
\n(including testifying at the Company’s expense) necessary or proper to obtain
\nletters patent or other applicable registrations thereon and to vest the Company
\nwith full title thereto. Should the Company be unable to secure my signature on
\nany document necessary to apply for, prosecute, obtain, or enforce any patent,
\ncopyright, or other right or protection relating to any Invention Idea, whether
\ndue to my mental or physical incapacity or any other cause, I hereby irrevocably
\ndesignate and appoint the Company and each of its duly authorized officers and
\nagents as my agent and attorney-in-fact, to act for and in my behalf and stead,
\nto execute and file any such document, and to do all other lawfully permitted
\nacts to further the prosecution, issuance, and enforcement of patents,<\/p>\n
\n
\nif executed and delivered by me.<\/p>\n
\nprocesses, trademarks, service marks, inventions, technology, computer programs,
\noriginal works of authorship, designs, formulas, discoveries, patents,
\ncopyrights, or improvements to the foregoing that I wish to exclude from the
\noperation of this Agreement.<\/p>\n
\ndifficulty of establishing when any idea, process, invention, etc., is first
\nconceived or developed by me, or whether it results from access to Proprietary
\nInformation or the Company’s equipment, facilities and data, I agree that any
\nidea, process, trademark, service mark, invention, technology, computer program,
\noriginal work of authorship, design, formula, discovery, patent, copyright, or
\nany improvement, rights, or claims related to the foregoing shall be presumed to
\nbe an Invention Idea if it is conceived, developed, used, sold, exploited, or
\nreduced to practice by me or with my aid within one (1) year after my
\ntermination of employment with the Company. I can rebut the above presumption if
\nI prove that the invention, idea, process, etc., is not an Invention Idea as
\ndefined in paragraph 2(a). I hereby acknowledge that pursuit of the activities
\nforbidden by this Section 1(e) would necessarily involve the use or disclosure
\nof Proprietary Information in breach of Section 1, but that proof of such breach
\nwould be extremely difficult. To forestall such disclosure, use, and breach, I
\nagree that for the term of this Agreement and for a period of two (2) years
\nafter termination of my employment with the Company, I shall not, for myself or
\nany third party, directly or indirectly (i) divert or attempt to divert from the
\nCompany (or any affiliate of it that might be formed) any business of any kind
\nin which it is engaged, including, without limitation, the solicitation of or
\ninterference with any of its suppliers or customers; (ii) employ, solicit for
\nemployment, or recommend for employment any person employed by the Company (or
\nby any affiliate of it that might be formed) during the period of such person’s
\nemployment and for a period of one (1) year thereafter; or (iii) engage in any
\nbusiness activity that is or may be competitive with the Company (or any
\naffiliate of it that might be formed). I understand that none of my activities
\nwill be prohibited under this Section 1(e) if I can prove that the action was
\ntaken without the use in any way of Proprietary Information.<\/p>\n
\nof protection provided me by Sections 2870 through 2872 of the California Labor
\nCode.<\/p>\n
\nemployment with the Company, I will not disclose to the Company, or use, or
\ninduce the Company to use, any proprietary information or trade secrets of
\nothers. I represent that my performance of this Agreement will not breach any
\nagreement to keep in confidence proprietary information acquired by me in
\nconfidence or in trust prior to my employment by the Company. I certify that I
\nhave no outstanding agreement or obligation that is in conflict with any of the
\nprovisions of this Agreement, or that would preclude me from complying with the
\nprovisions hereof. I further certify that during the term of my employment with
\nthe Company, I will not engage in any other employment, occupation, consulting
\nor other business activity directly related to the business in which the Company
\nis now involved or becomes involved during the term of such employment.<\/p>\n
\nagree that the Company shall have the right at all times to notify any New
\nEmployer (at the Company’s sole discretion) of the existence of this Employee
\nProprietary Information and Inventions Agreement, its terms and my obligations
\nhereunder, as well as the existence of any other agreement entered into by me
\nand the Company that imposes certain obligations to me after termination of
\nemployment with the Company.<\/p>\n
\nCompany has or may enter into contracts with<\/p>\n
\n
\nrequired to be protected, assigned, licensed, or otherwise transferred and I
\nhereby agree to execute such other documents and agreements as are necessary to
\nenable the Company to meet its obligations under any such government contracts.\n<\/p>\n
\nall personal property, including, without limitation, all books, manuals,
\nrecords, models, drawings, reports, notes, contracts, lists, blueprints, and
\nother documents or materials or copies thereof, Proprietary Information, and
\nequipment furnished to or prepared by me in the course of or incident to my
\nemployment, belong to the Company and will be promptly returned to the Company
\nupon termination of my employment with the Company. Following my termination, I
\nwill not retain any written or other tangible material containing any
\nProprietary Information or information pertaining to any Invention Idea. I
\nunderstand that my obligations contained herein will survive the termination of
\nmy employment. In the event of termination of my employment, I agree to sign and
\ndeliver to the Company a Termination Certificate in the form attached hereto as
\nExhibit B.<\/p>\n
\nor entity any of its rights under this Agreement, including, without limitation,
\nany successor in interest to the Company or its business operations. This
\nAgreement shall be binding upon me and my heirs, executors, administrators, and
\nsuccessors, and shall inure to the benefit of the Company’s successors and
\nassigns.<\/p>\n
\nenforceability, and performance of this Agreement shall be governed by and
\nconstrued in accordance with the laws of the State of California. If any
\nprovision of this Agreement, or application thereof to any person, place, or
\ncircumstance, shall be held by a court of competent jurisdiction to be invalid,
\nunenforceable, or void, the remainder of this Agreement and such provisions as
\napplied to other persons, places, and circumstances shall remain in full force
\nand effect.<\/p>\n
\nexpression of my agreement with respect to the subject matter hereof and may not
\nbe contradicted by evidence of any prior or contemporaneous agreement. This
\nAgreement shall constitute the complete and exclusive statement of its terms and
\nno extrinsic evidence whatsoever may be introduced in any judicial,
\nadministrative, or other legal proceeding involving this Agreement.<\/p>\n
\nset forth in Sections 1 and Section 2 hereof and the definitions of Proprietary
\nInformation and Invention Ideas contained therein shall be equally applicable to
\nProprietary Information and Invention Ideas relating to any work performed by me
\nfor the Company prior to the execution of this Agreement.<\/p>\n
\npages follow.]<\/strong><\/p>\n
\n
\nand Inventions Agreement to be duly executed as of the date hereof.<\/p>\n\n\n
\n <\/td>\n<\/tr>\n \n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n \n \n <\/td>\n <\/td>\n \n \n <\/td>\n <\/td>\n <\/td>\n \n \n <\/td>\n <\/td>\n <\/td>\n \n \n <\/td>\n <\/td>\n <\/td>\n \n
\n
\nmarks, inventions, technology, computer programs, original works of authorship,
\ndesigns, formulas, discoveries, patents, copyrights, or any claims, rights, or
\nimprovements to the foregoing that I wish to exclude from the operation of this
\nAgreement:<\/p>\n\n\n
\n <\/td>\n<\/tr>\n \n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n \n \n <\/td>\n <\/td>\n \n \n <\/td>\n <\/td>\n <\/td>\n \n \n <\/td>\n <\/td>\n <\/td>\n \n \n <\/td>\n <\/td>\n <\/td>\n \n