August 10, 2017 Christopher Hylen Dear Chris:
Exhibit 99.2
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August 10, 2017
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear ▇▇▇▇▇:
On behalf of Imperva, Inc. (the “Company”), this letter agreement (the “Agreement”) sets forth the terms and conditions of your appointment as President and Chief Executive Officer of the Company:
1. Position. Your title will be President and Chief Executive Officer and you will report solely and directly to the Company’s Board of Directors (the “Board”). This is a full-time position based out of our headquarters in Redwood Shores. You will be appointed to the Board upon your commencement of employment and during the term of your employment, subject to the requirements of applicable law (including, without limitation, any rules or regulations of any exchange on which the Company’s common stock is listed, if applicable), the Board or the appropriate committee of the Board will nominate you for re-election to the Board at each annual meeting at which you are subject to re-election. Upon a termination of employment, and to the extent requested in writing by the Company, you agree to resign from all positions you may hold with the Company at such time (including as a member of the Board).
2. Duties. You will have all of the duties, responsibilities and authority commensurate with the position. You will be expected to devote your full working time and attention to the business of the Company, are not eligible for overtime pay and will not render services to any other business without the prior approval of the Board. Notwithstanding the foregoing, you may manage personal investments, participate in civic, charitable, professional and academic activities (including serving on boards and committees), and, subject to prior approval by the Board or the appropriate committee of the Board and in accordance with the Company’s policies, including the Corporate Opportunity and Conflict of Interests Policy, serve on the board of directors (and any committees) and/or as an advisor of other for-profit companies, provided that such activities do not at the time the activity or activities commence or thereafter (i) create an actual or potential business or fiduciary conflict of interest or (ii) individually or in the aggregate, interfere materially with the performance of your duties to the Company.
3. Cash Compensation. Your initial annual base salary (the “Base Salary”) will be $440,000, payable in accordance with the Company’s standard payroll schedule and practices. Thereafter, your Base Salary will be determined by the Compensation Committee of the Board (the “Compensation Committee”), based upon annual reviews. Your Base Salary will be pro-rated for any partial months of employment during your employment term.
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4. Annual Bonus. In addition, during the employment term, you will be eligible to participate in the Company’s bonus plan as in effect from time to time. Initially, your annual bonus target will be 100% of Base Salary (the “Target Bonus”), with a maximum of 115% of Base Salary (which Target Bonus and maximum may be adjusted, based upon annual reviews) and the actual bonus amount awarded will be determined based upon the achievement of performance objectives established by the Compensation Committee in consultation with you, and any actual bonus will be paid quarterly in cash at the same time that similar bonuses are paid to US-based executive officers under the Company’s bonus plan (generally these have been paid in connection with the next regular pay cycle following the Company’s release of earnings for the relevant quarter). To receive payment of any actual bonus, you must be employed by the Company at the time bonuses are paid. Your bonus participation will be subject to all the terms, conditions and restrictions of the applicable Company bonus plan, as amended from time to time. Your actual bonus for fiscal year 2017 will be pro-rated based upon the number of days you are employed by the Company during fiscal year 2017, but you shall receive a guaranteed bonus of 100% of your Target Bonus for each quarter that you are employed by the Company during fiscal year 2017, prorated for each partial quarter that you are so employed.
5. Employee Benefits. You will be entitled to participate in a number of Company-sponsored benefits as in effect from time to time; provided, that you shall receive benefits no less favorable than those provided to other executive officers of the Company.
6. Severance. If, within twenty-four (24) months of the commencement of your employment, your employment is terminated by the Company without Cause or you resign with Good Reason (each as defined in the Company’s Change in Control Plan) in the absence of a Change in Control, the Company shall provide you upon execution and non-revocation of a release (in the form described in Section 8 below) (a) a lump-sum payment equal to twelve (12) months’ Base Salary, to be paid, subject to Section 13 hereof, in a lump sum in cash on the next regular payroll period following the effectiveness of such release, (b) twelve (12) months’ of COBRA continuation of health care coverage paid for by the Company on a monthly basis, (c) twelve (12) months’ of additional time-vesting credit on all equity awards granted to you by the Company that (i) are subject solely to time-based vesting or (ii) were subject to performance criteria for which the applicable performance period has been completed and the level of performance has been determined as of the termination pursuant to the terms of the applicable performance-based equity award agreement and that remain subject to time-based vesting, and (d) twelve (12) months’ of additional time-vesting credit on all equity awards granted to you by the Company that are subject to performance criteria for which the applicable performance period is on-going as of the termination, and deeming achievement of performance criteria at the target level of achievement for such equity award. For the avoidance of doubt, (i) the provisions of this Section 6 shall not apply to a termination with respect to which the Company’s Change in Control Plan applies, and (ii) while serving as an executive officer of the Company, you shall be subject to the Company’s Change in Control Plan.
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7. Vacation. The Company does not maintain a vacation or paid time off accrual policy with a fixed number of days for exempt, salaried staff and will not formally track the amount of personal time you spend away from the office, and you are free to take personal time at your discretion, with pay, in accordance with the Company’s Time Off Policy; however, you will be expected to manage your time away from the office in such a way as to ensure that your work responsibilities are adequately addressed.
8. Equity Awards. The Company shall grant to you within one month after your Start Date restricted stock units for 101,200 shares of the Company’s common stock (the “RSUs”). The RSUs will commence time-based vesting on August 15, 2017 and 25% of the shares subject to the RSUs will time-base vest on the first anniversary of the vesting commencement date and an additional 6.25% of the shares subject to the RSUs will time-base vest each quarter thereafter, in each case, except as set forth herein, so long as you remain continuously employed by the Company as an employee or otherwise continuously provide services to the Company, subject to the terms of the Company’s Change in Control Plan, as amended from time to time. The RSUs will be granted pursuant to and be subject to the terms of the Company’s 2015 Equity Inducement Plan. The specific terms and conditions of the RSUs will be set forth in a separate Restricted Stock Unit Agreement consistent with the terms of this Agreement.
In addition, the Company shall grant to you in the first quarter of 2018 performance restricted stock units subject to performance metrics to be determined by the Compensation Committee in consultation with you and with metrics no less favorable than those provided to other senior executive officers of the Company (the “PRSUs”) for 110,190 shares of the Company’s common stock at target and for up to 220,380 shares of the Company’s common stock for performance in excess of target. The PRSUs will commence time-based vesting on February 15, 2018 and 16.67% of the shares subject to the PRSUs will time-base vest on the later to occur of (a) the first anniversary of the vesting commencement date and (b) the date that the Company publicly issues its earnings release for the quarter and year ending December 31, 2018 (but not later than the due date for filing the Company’s annual report on Form 10-K for such period under Rule 12b-25 [Form 12b-25/NT 10-K]) and an additional 16.67% of the shares subject to the PRSUs will vest each quarter thereafter, in each case, except as provided herein, so long as you remain continuously employed by the Company as an employee or otherwise continuously provide services to the Company, and in all cases only if and to the extent the performance metrics are met, and subject to the terms of the Company’s Change in Control Plan, as amended from time to time. The PRSUs will be granted pursuant to and be subject to the terms of the Company’s 2011 Stock Option and Incentive Plan (the “Plan”). The specific terms and conditions of the PRSUs will be set forth in a separate Performance Restricted Stock Unit Agreement consistent with the terms of this Agreement. In the event of a Change in Control (as defined in the Company’s Change in Control Plan) prior to the grant of these PRSUs, then, in lieu thereof, the Company will provide you with a lump sum cash payment equal to $4.9 million upon the closing of such Change in Control, subject to your timely execution, return and non-revocation of a general release of claims in favor of the Company in the form acceptable to the Company (in a form consistent with the release in the Change of Control Plan) and provided that at the time of such closing, either (x) you are employed by the Company as an employee or otherwise continuously provide services to the Company or (y) your employment has been terminated by the Company without Cause or by you with Good Reason during the three (3)-month period immediately prior to a Change in Control.
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You shall be eligible to receive future equity awards as determined by the Compensation Committee.
9. Signing Bonus; Expenses. The Company will provide you with a sign on bonus totaling $250,000 (the “Sign On Bonus”), which will be paid in accordance with the Company’s payroll policies within one (1) month following the commencement of your employment. The Sign On Bonus will not be earned by you until you have completed twenty-four (24) months of service pursuant to this Agreement. Should your employment with the Company terminate other than a termination by the Company without Cause or a resignation for Good Reason prior to twenty-four (24) months of service, you agree to repay the Company the portion of the Sign On Bonus equal to (a) a fraction (i) the numerator of which is twenty-four (24) minus the number of months of your actual service with the Company and the denominator of which is twenty-four (24), multiplied by (b) the amount of the Sign On Bonus. In addition, the Company will, in accordance with applicable Company policies and guidelines, reimburse you for all reasonable and necessary expenses incurred by you in connection with your performance of services on behalf of the Company. In addition, the Company will pay for the legal expenses that you incur in connection with retaining separate counsel for the review of this Agreement, up to $10,000. The reimbursement for all such expenses shall be paid pursuant to the Company’s policies and practices, following your submission of proper documentation for such expenses.
10. Proprietary Information and Inventions Agreement. You will be required, as a condition of your employment with the Company, to sign the Company’s standard Proprietary Information and Inventions Agreement, a copy of which is attached hereto as Exhibit A.
11. Employment Relationship. Employment with the Company is for no specific period of time. Your employment with the Company will be “at will,” meaning that either you or the Company may terminate your employment at any time and for any reason, with or without cause. Although your job duties, title, reporting relationship, compensation and benefits, as well as the Company’s personnel policies and procedures, may change from time to time (subject to Section 6), the “at will” nature of your employment may only be changed in an express written agreement signed by you and a duly authorized officer of the Company (other than you).
12. Parachute Payments. In the event that any benefits provided for in this Agreement or otherwise payable to you (a) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (b) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code, then, at your discretion, your benefits under this Agreement shall be payable either (a) in full, or (b) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and employment (if applicable) taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of severance benefits under this Agreement and other Company
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compensation arrangements (collectively), notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro-rata reduction of (a) cash payments subject to Section 409A of the Code as deferred compensation and (b) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of (a) equity-based compensation subject to Section 409A of the Code as deferred compensation and (b) equity-based compensation not subject to Section 409A of the Code, with equity all being reduced in reverse order of vesting and equity not subject to treatment under Treasury regulation 1.280G-Q&A 24(c) being reduced before equity that is so subject. Unless the Company and you otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose final determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Accountants shall deliver to the Company and you sufficient documentation for you to rely on it for purpose of filing your tax returns. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.
13. Section 409A. To the extent (a) any payments to which you become entitled under this Agreement, or any agreement or plan referenced herein, in connection with your termination of employment with the Company constitute deferred compensation subject to Section 409A of the Code and (b) you are deemed at the time of such termination of employment to be a “specified” employee under Section 409A of the Code, then such payment or payments shall not be made or commence until the earlier of (a) the expiration of the six (6)-month period measured from the date of your “separation from service” (as such term is at the time defined in regulations under Section 409A of the Code) with the Company; or (b) the date of your death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to you, including (without limitation) the additional twenty percent (20%) tax for which you would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to you or your beneficiary in one lump sum (without interest).
Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement (or otherwise referenced herein) is determined to be subject to (and not exempt from) Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in- kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement or in kind benefits to be provided in any other calendar year, in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which you incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.
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To the extent that any provision of this Agreement (or other Company compensation arrangement) is ambiguous as to its exemption or compliance with Section 409A, the provision will be read in such a manner so that all payments hereunder are exempt from Section 409A to the maximum permissible extent, and for any payments where such construction is not tenable, that those payments comply with Section 409A to the maximum permissible extent. To the extent any payment under this Agreement may be classified as a “short-term deferral” within the meaning of Section 409A, such payment shall be deemed a short-term deferral, even if it may also qualify for an exemption from Section 409A under another provision of Section 409A. In the event the parties reasonably determine that any provision or payment under this Agreement (or other Company compensation arrangement) does not or would not comply with Section 409A, then the parties shall in good faith reasonably cooperate to make amendments or modifications to such provisions or payments in order to comply with Section 409A, attempting in good faith to reasonably preserve the intended economic benefit of this Agreement and other Company compensation arrangement (collectively) (it being understood that Company has no liability for any failure of such intended economic benefits to be preserved).
Payments pursuant to this Agreement (or referenced in this Agreement), and each installment thereof, are intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the regulations under Section 409A.
14. Other Company Policies. You will be bound by and comply fully with the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy, code of conduct, and any other policies and programs adopted by the Company regulating the behavior of its employees, as such policies and programs may be amended from time to time to the extent the same are not inconsistent with this Agreement, unless you consent to the same at the time of such amendment.
15. Indemnification. You and the Company will enter into the form of indemnification agreement provided to other similarly situated officers and directors of the Company. In addition, you will be named as an insured on the director and officer liability insurance policy currently maintained by the Company, or as may be maintained by the Company from time to time.
16. Withholding Taxes. All forms of compensation referred to in this Agreement are subject to reduction to reflect applicable withholding and payroll taxes and other deductions required by law.
17. Arbitration. You and the Company agree to submit to mandatory binding arbitration, in San Mateo County, California, before a single neutral arbitrator, any and all claims arising out of or related to this Agreement and your employment with the Company and the termination thereof, except that each party may, at its or his option, seek injunctive relief in court related to the improper use, disclosure or misappropriation of a party’s proprietary, confidential or trade secret information. This agreement to arbitrate does not restrict your right to file administrative claims you may bring before any government agency where, as a matter of law, the parties may not restrict your ability to file such claims (including, but not limited to, the National Labor Relations Board, the
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Equal Employment Opportunity Commission and the Department of Labor). However, you and the Company agree that, to the fullest extent permitted by law, arbitration shall be the exclusive remedy for the subject matter of such administrative claims. The arbitration shall be conducted through the American Arbitration Association (the “AAA”), provided that, the arbitrator shall have no authority to make any ruling or judgment that would confer any rights with respect to the trade secrets, confidential and proprietary information or other intellectual property of the Company upon you or any third party. The arbitrator shall issue a written decision that contains the essential findings and conclusions on which the decision is based. The arbitration will be conducted in accordance with the AAA employment arbitration rules then in effect. The AAA rules may be found and reviewed at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇. If you are unable to access these rules, please let me know and I will provide you with a hardcopy.
18. Compensation Recoupment. All amounts payable to you hereunder shall be subject to recoupment pursuant to the Company’s current compensation recoupment policy, and any additional compensation recoupment policy or amendments to the current policy adopted by the Board as required by law during the term of your employment with the Company that is applicable generally to executive officers of the Company. Except as set forth in the Company’s then-current compensation recoupment policy or as otherwise specifically provided herein, no amounts earned under this Agreement (or any other Company compensation arrangement) shall be subject to offset or mitigation.
19. Proof of Employment Eligibility and Background Check. This offer is contingent upon your completion and execution of all employment documents, as well as your ability to provide proof of identification and authorization to work in the United States (within two business days of your start date) and upon passing the Company’s mandatory background verification.
20. Miscellaneous.
a. Absence of Conflicts; Competition with Prior Employer. You represent that your performance of your duties under this Agreement will not breach any other agreement as to which you are a party. You agree that you have disclosed to the Company all of your existing employment and/or business relationships, including, but not limited to, any consulting or advising relationships, outside directorships, investments in privately held companies, and any other relationships that may create a conflict of interest. You are not to bring with you to the Company, or use or disclose to any person associated with the Company, any confidential or proprietary information belonging to any former employer or other person or entity with respect to which you owe an obligation of confidentiality under any agreement or otherwise. The Company does not need and will not use such information and we will assist you in any way possible to preserve and protect the confidentiality of proprietary information belonging to third parties. Also, we expect you to abide by any obligations to refrain from soliciting any person employed by or otherwise associated with any former employer and suggest that you refrain from having any contact with such persons until such time as any non-solicitation obligation expires.
b. Successors. This Agreement is binding on and may be enforced by the Company and its successors and permitted assigns and is binding on and may be enforced by you and your heirs and legal representatives. Any successor to the Company or substantially all of its business (whether by purchase, merger, consolidation or otherwise) will in advance assume in writing and be bound by all of the Company’s obligations under this Agreement and shall be the only permitted assignee.
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c. Notices. Notices under this Agreement must be in writing and will be deemed to have been given when personally delivered or two (2) days after mailed by U.S. registered or certified mail, return receipt requested and postage prepaid. Mailed notices to you will be addressed to you at the home address which you have most recently communicated to the Company in writing. Notices to the Company will be addressed to the General Counsel at the Company’s corporate headquarters.
d. Waiver. No provision of this Agreement will waived except in writing signed by you and an officer of the Company duly authorized by its Board. No waiver by either party of any breach of this Agreement by the other party will be considered a waiver of any other breach of this Agreement.
e. Severability. In the event that any provision hereof becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provision.
f. Governing Law. This Agreement will be governed by the laws of the State of California without reference to conflict of laws provisions.
g. Survival. The provisions of this Agreement shall survive the termination of your employment for any reason to the extent necessary to enable the parties to enforce their respective rights under this Agreement.
21. Entire Agreement. This Agreement and Exhibit A (together with the equity award agreements and the Company’s Change in Control Plan) supersede and replace any prior agreements, representations or understandings (whether written, oral, implied or otherwise) between you and the Company and constitute the complete agreement between you and the Company regarding the subject matter set forth herein. This Agreement may not be amended or modified, except by an express written agreement signed by both you and a person authorized to do so by a majority by the Board.
[signature page follows]
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We hope that you will accept our offer to join the Company. You may indicate your agreement with these terms and accept this Agreement by signing and dating both the enclosed duplicate original of this Agreement and the enclosed Proprietary Information and Inventions Agreement and returning them to me. This offer, if not accepted, will expire at the close of business on August 10, 2017. Your employment is also contingent upon your starting work with the Company on or before August 15, 2017.
| Very truly yours, IMPERVA, INC. | ||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||
| Title: Lead Independent Director | ||
| Dated: | August 10, 2017 | |
| I have read and accept this employment offer: | ||
| /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| Signature of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| Dated: | August 10, 2017 | |
Attachment
Exhibit A: Proprietary Information and Inventions Agreement
PROPRIETARY INFORMATION AND INVENTION AGREEMENT
In consideration of, and as a condition of my employment with Imperva, Inc., a Delaware corporation (the “Company”), I, as the “Employee” signing this Proprietary Information and Invention Agreement (this “Agreement”), hereby represent to the Company, and the Company and I hereby agree as follows:
1. Purpose of Agreement. I understand that the Company is engaged in a continuous program of research, development, production and/or marketing in connection with its current and projected business and that it is critical for the Company to preserve and protect its proprietary information, its rights in certain inventions and works and in related intellectual property rights. Accordingly, I am entering into this Agreement, whether or not I am expected to create inventions or other works of value for the Company. As used in this Agreement, “Inventions” means inventions, improvements, designs, original works of authorship, formulas, processes, compositions of matter, computer software programs, databases, mask works, confidential information and trade secrets.
2. Disclosure of Inventions. I will promptly disclose in confidence to the Company, or to any person designated by it, all Inventions that I make, create, conceive or first reduce to practice, 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 patentable, copyrightable or protectable as trade secrets.
3. Work for Hire; Assigned Inventions. I acknowledge and agree that any copyrightable works prepared by me within the scope of my employment will be “works made 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 make, create, conceive or first reduce to practice during the period of my employment, whether or not in the course of my employment, and whether or not patentable, copyrightable or protectable as trade secrets, and 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 actual or demonstrably anticipated research or development (the “Assigned Inventions”), will be the sole and exclusive property of the Company.
4. Excluded Inventions and Other Inventions. Attached hereto as Exhibit A is a list describing all existing Inventions, if any, that may relate to the Company’s business or actual or demonstrably anticipated research or development and that were made by me or acquired by me prior to the Effective Date (as defined in Section 25, below), and which are not to be assigned to the Company (“Excluded Inventions”). If no such list is attached, I represent and agree that it is because I have no rights in any existing Inventions that may relate to the Company’s business or actual or demonstrably anticipated research or development. For purposes of this Agreement, “Other Inventions” means Inventions in which I have or may have an interest, as of the Effective Date or thereafter, other than Assigned Inventions and Excluded Inventions. I acknowledge and agree that if, in the scope of my employment, I use any Excluded
Inventions or any Other Inventions, or if I include any Excluded Inventions or Other Inventions in any product or service of the Company or if my rights in any Excluded Inventions or Other Inventions may block or interfere with, or may otherwise be required for, the exercise by the Company of any rights assigned to the Company under this Agreement, I will immediately so notify the Company in writing. Unless the Company and I agree otherwise in writing as to particular Excluded Inventions or Other Inventions, I hereby grant to the Company, in such circumstances (whether or not I give the Company notice as required above), a perpetual, irrevocable, nonexclusive, transferable, world-wide, royalty-free license to use, disclose, make, sell, offer for sale, import, copy, distribute, modify and create works based on, perform, and display such Excluded Inventions and Other Inventions, and to sublicense third parties in one or more tiers of sublicensees with the same rights.
5. Exception to Assignment. I understand that the Assigned Inventions will not include, and the provisions of this Agreement requiring assignment of inventions to the Company do not apply to, any invention that qualifies fully for exclusion under the provisions of Section 2870 of the California Labor Code, which are attached hereto as Exhibit B.
6. Assignment of Rights. I agree to assign, and do hereby irrevocably transfer and assign, to the Company: (i) all of my rights, title and interests in and with respect to any Assigned Inventions; (ii) all patents, patent applications, copyrights, mask works, rights in databases, trade secrets, and other intellectual property rights, worldwide, in any Assigned Inventions, along with any registrations of or applications to register such rights; and (iii) to the extent assignable, any and all Moral Rights (as defined below) that I may have in or with respect to any Assigned Inventions. I also hereby forever waive and agree never to assert any Moral Rights I may have in or with respect to any Assigned Inventions and any Excluded Inventions or Other Inventions licensed to the Company under Section 4, even after termination of my employment with the Company. “Moral Rights” means any rights to claim authorship of a work, to object to or prevent the modification or destruction of a work, to withdraw from circulation or control the publication or distribution of a work, and any similar right, regardless of whether or not such right is denominated or generally referred to as a “moral right.”
7. Assistance. I will assist the Company in every proper way to obtain and enforce for the Company all patents, copyrights, mask work rights, trade secret rights and other legal protections for the Assigned Inventions, worldwide. I will execute and deliver any documents that the Company may reasonably request from me in connection with providing such assistance. My obligations under this section will continue beyond the termination of my employment with the Company; provided that the Company agrees to compensate me at a reasonable rate after such termination for time and expenses actually spent by me at the Company’s request in providing such assistance. I hereby appoint the Secretary of the Company as my attorney-in-fact to execute documents on my behalf for this purpose. I agree that this appointment is coupled with an interest and will not be revocable.
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8. Proprietary Information. I understand that my employment by the Company creates a relationship of confidence and trust with respect to any information or materials of a confidential or secret nature that may be made, created or discovered by me or that may be disclosed to me by the Company or a third party in relation to the business of the Company or to the business of any parent, subsidiary, affiliate, customer or supplier of the Company, or any other party with whom the Company agrees to hold such information or materials in confidence (the “Proprietary Information”). Without limitation as to the forms that Proprietary Information may take, I acknowledge that Proprietary Information may be contained in tangible material such as writings, drawings, samples, electronic media, or computer programs, or may be in the nature of unwritten knowledge or know-how. Proprietary Information includes, but is not limited to, Assigned Inventions, marketing plans, product plans, designs, data, prototypes, specimens, test protocols, laboratory notebooks, business strategies, financial information, forecasts, personnel information, contract information, customer and supplier lists, and the non-public names and addresses of the Company’s customers and suppliers, their buying and selling habits and special needs.
9. Confidentiality. At all times, both during my employment and after its termination, and to the fullest extent permitted by law, I will keep and hold all Proprietary Information in strict confidence and trust. I will not use or disclose any Proprietary Information without the prior written consent of the Company in each instance, except as may be necessary to perform my duties as an employee of the Company for the benefit of the Company. Upon termination of my employment with the Company, I will promptly deliver to the Company all documents and materials of any nature pertaining to my work with the Company, and I will not take with me or retain in any form any documents or materials or copies containing any Proprietary Information. Nothing in this Section 9 or otherwise in this Agreement shall limit or restrict in any way my immunity from liability for disclosing the Company’s trade secrets as specifically permitted by 18 U.S. Code Section 1833, the pertinent provisions of which are attached hereto as Exhibit C.
10. Physical Property. All documents, supplies, equipment and other physical property furnished to me by the Company or produced by me or others in connection with my employment will be and remain the sole property of the Company. I will return to the Company all such items when requested by the Company, excepting only my contacts, calendar and personal correspondence, my personal copies of records relating to my employment or compensation and any personal property I bring with me to the Company and designate as such. Even if the Company does not so request, I will upon termination of my employment return to the Company all Company property, and I will not take with me or retain any such items.
11. No Breach of Prior Agreements. 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, non-competition, or other 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 my own or of a former employer or third party that are not generally available for use by the public or have not been legally transferred to the Company.
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12. “At Will” Employment. I understand that this Agreement does not constitute a contract of employment or obligate the Company to employ me for any stated period of time. I understand that I am an “at will” employee of the Company and that my employment can be terminated at any time, with or without notice and with or without cause, for any reason or for no reason, by either the Company or by me. I acknowledge that any statements or representations to the contrary are ineffective, unless put into a writing signed by the Company. I further acknowledge that my participation in any stock option or benefit program is not to be construed as any assurance of continuing employment for any particular period of time.
13. Company Opportunities; Duty Not to Compete. During the period of my employment, I will at all times devote my best efforts to the interests of the Company, and I will not, without the prior written consent of the Company, engage in, or encourage or assist others to engage in, any other employment or activity that: (i) would divert from the Company any business opportunity in which the Company can reasonably be expected to have an interest; (ii) would directly compete with, or involve preparation to compete with, the current or future business of the Company; or (iii) would otherwise conflict with the Company’s interests or could cause a disruption of its operations or prospects.
14. Non-Solicitation of Employees/Consultants. During my employment with the Company and for a one (1) year period thereafter, I will not directly or indirectly solicit away employees or consultants of the Company for my own benefit or for the benefit of any other person or entity, nor will I encourage or assist others to do so. I shall not be prohibited from general advertisements not specifically directed at employees or consultants of the Company or from providing references (though not referrals).
15. Use of Name & Likeness. 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 form of media or technology now known or hereafter developed, both during and after my employment, for any purposes related to the Company’s business, such as marketing, advertising, credits, and presentations.
16. Notification. I hereby authorize the Company, during and after the termination of my employment with the Company, to notify third parties, including, but not limited to, actual or potential customers or employers, of the terms of this Agreement and my responsibilities hereunder.
17. Injunctive Relief. I understand that a breach or threatened breach of this Agreement by me may cause the Company to suffer irreparable harm and that the Company will therefore be entitled to injunctive relief to enforce this Agreement.
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18. Governing Law; Severability. This Agreement is intended to supplement, and not to supersede, any rights the Company may have in law or equity with respect to the duties of its employees and the protection of its trade secrets. This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. Each party irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the state courts located in Santa ▇▇▇▇▇ County, and federal courts located in the Northern District of California. If any provision of this Agreement is invalid, illegal or unenforceable in any respect, such provision will be enforced to the maximum extent possible, given the fundamental intentions of the parties when entering into this Agreement. To the extent such provision cannot be so enforced, it will be stricken from this Agreement and the remainder of this Agreement will be enforced as if such invalid, illegal or unenforceable provision had never been contained in this Agreement.
19. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered will be deemed an original, and all of which together will constitute one and the same agreement.
20. Entire Agreement. This Agreement and the documents referred to herein constitute the entire agreement and understanding of the parties with respect to the subject matter of this Agreement, and supersede all prior understandings and agreements, whether oral or written, between the parties hereto with respect to such subject matter.
21. Amendment and Waiver. This Agreement may be amended only by a written agreement executed by each of the parties to this Agreement. No amendment or waiver of, or modification of any obligation under, this Agreement will be enforceable unless specifically set forth in a writing signed by the party against which enforcement is sought. A waiver by either party of any of the terms and conditions of this Agreement in any instance will not be deemed or construed to be a waiver of such term or condition with respect to any other instance, whether prior, concurrent or subsequent.
22. Successors and Assigns; Assignment. Except as otherwise provided in this Agreement, this Agreement, and the rights and obligations of the parties hereunder, will bind and benefit the parties and their respective successors, assigns, heirs, executors, administrators, and legal representatives. The Company may assign any of its rights and obligations under this Agreement. I understand that I will not be entitled to assign or delegate this Agreement or any of my rights or obligations hereunder, whether voluntarily or by operation of law, except with the prior written consent of the Company.
23. Further Assurances. The parties will execute such further documents and instruments and take such further actions as may be reasonably necessary to carry out the purposes and intent of this Agreement. Upon termination of my employment with the Company, I will execute and deliver a document or documents in a form reasonably requested by the Company confirming my agreement to comply with the post-employment obligations contained in this Agreement.
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24. Acknowledgement. I certify and acknowledge that I have carefully read all of the provisions of this Agreement and that I understand and will fully and faithfully comply with this Agreement.
25. Effective Date of Agreement. This Agreement is and will be effective on and after the first day of my employment by the Company, which is August 15, 2017 (the “Effective Date”).
| Imperva, Inc.: | Employee: | |||||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||
| Signature | ||||||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇ | ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||
| Name (Please Print) | ||||||
| Title: |
Senior Vice President, People | |||||
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Exhibit A
LIST OF EXCLUDED INVENTIONS UNDER SECTION 4
| Title |
Date |
Identifying Number or Brief Description |
No inventions, improvements, or original works of authorship
Additional sheets attached
Signature of Employee: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Print Name of Employee: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Date: August 10, 2017
Exhibit B
CALIFORNIA LABOR CODE 2870 NOTICE:
California Labor Code Section 2870 provides as follows:
Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or (2) result from any work performed by the employee for the employer. To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under California Labor Code Section 2870(a), the provision is against the public policy of this state and is unenforceable.
Exhibit C
DEFEND TRADE SECRETS ACT, 18 U.S. CODE § 1833 NOTICE:
18 U.S. Code Section 1833 provides as follows:
Immunity From Liability For Confidential Disclosure Of A Trade Secret To The Government Or In A Court Filing. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made, (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.