EXHIBIT 10.15
Separation Agreement between the Registrant and ▇▇▇▇ ▇. ▇▇▇▇▇▇,
dated September 9, 1996
SEPARATION AGREEMENT
This SEPARATION AGREEMENT ("Agreement") is made and entered into by and
between ▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇") and WONDERWARE CORPORATION (the
"Company"), as of the Effective Date as defined in Paragraph 11 herein.
W I T N E S S E T H
WHEREAS, ▇▇. ▇▇▇▇▇▇ has tendered his resignation as an employee and
officer of the Company, and all other positions he may hold with the Company,
and wishes to enter into a part-time employment relationship with the Company;
WHEREAS, the Company has accepted ▇▇. ▇▇▇▇▇▇'▇ resignation as an
employee and officer of the Company, and all other positions he may hold with
the Company, and wishes to enter into a part-time employment relationship with
▇▇. ▇▇▇▇▇▇ and provide him with certain benefits in consideration of his service
to the Company and the promises and covenants of ▇▇. ▇▇▇▇▇▇ as contained herein;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, it is agreed by and between the parties hereto as follows:
1. RESIGNATION. ▇▇. ▇▇▇▇▇▇ has tendered and the
Company has accepted ▇▇. ▇▇▇▇▇▇'▇ resignation as an employee and officer of the
Company, and all other positions he may hold with the Company, effective
September 9, 1996 (the "Separation Date").
2. ACCRUED SALARY AND PAID TIME OFF. On the Separation
Date, the Company will pay ▇▇. ▇▇▇▇▇▇ all accrued salary, and all accrued and
unused paid time off earned prior to the Separation Date, subject to
standaACCRUED SALARY AND PAID TIME OFF. On the Separation Date, the Company will
pay ▇▇. ▇▇▇▇▇▇ all accrued salary, and all accrued and unused paid time off
earned prior to the Separation Date, subject to standard payroll deductions and
withholdings.
3. EXPENSE REIMBURSEMENT. Within ten (10) business days of the
Effective Date, ▇▇. ▇▇▇▇▇▇ will submit his final documented expense
reimbursement statement reflecting all business expenses he incurred through the
Separation Date, if any, for which he seeks reimbursement. The Company shall
reimburse Mr. WilsoEXPENSE REIMBURSEMENT. Within ten (10) business days of the
Effective Date, ▇▇. ▇▇▇▇▇▇ will submit his final documented expense
reimbursement statement reflecting all business expenses he incurred through the
Separation Date, if any, for which he seeks reimbursement. The Company shall
reimburse ▇▇. ▇▇▇▇▇▇'▇ expenses pursuant to Company policy and regular business
practice.
4. PART-TIME EMPLOYMENT AGREEMENT. ▇▇. ▇▇▇▇▇▇ shall serve as a
part-time employee of the Company under the terms specified below. The part-time
employment relationship shall commence on the Separation Date and continue
through March 9, 1997, or if ▇▇. ▇▇▇▇▇▇'▇ services under this Agreement are
terminated by the Company in accordance with paragraph 14 hereof prior to March
9, 1997, the date such terminatiPART-TIME EMPLOYMENT AGREEMENT. ▇▇. ▇▇▇▇▇▇ shall
serve as a part-time employee of the Company under the terms specified below.
The part-time employment relationship shall commence on the Separation Date and
continue through March 9, 1997, or if ▇▇. ▇▇▇▇▇▇'▇ services under this Agreement
are terminated by the Company in accordance with paragraph 14 hereof prior to
March 9, 1997, the date such termination is effective (the "Part-Time Employment
Period").
a. Duties. ▇▇. ▇▇▇▇▇▇ agrees to provide
services to the Company in any area of his expertise upon reasonable request
made from time to time by and at the direction of the Board of Directors of the
Company. He agrees to utilize his expertise and act in a professional manner in
performing these services. The services to be provided hereunder shall be
performed in Orange County, California at such times as mutually agreed to by
the parties, after reasonable notice, taking into account vacation and
scheduling conflicts. ▇▇. ▇▇▇▇▇▇ agrees to make himself available to perform
such services throughout the Part-Time Employment Period, up to a maximum of
twenty (20) hours per month. ▇▇. ▇▇▇▇▇▇ agrees that throughout the Part-Time
Employment Period he will continue to be bound by the Company's written
employment policies, procedures and practices as contained in its employee
haDuties. ▇▇. ▇▇▇▇▇▇ agrees to provide services to the Company in any area of
his expertise upon reasonable request made from time to time by and at the
direction of the Board of Directors of the Company. He agrees to utilize his
expertise and act in a professional manner in performing these services. The
services to be provided hereunder shall be performed in Orange County,
California at such times as mutually agreed to by the parties, after reasonable
notice, taking into account vacation and scheduling conflicts. ▇▇. ▇▇▇▇▇▇ agrees
to make himself available to perform such services throughout the Part-Time
Employment Period, up to a maximum of twenty (20) hours per month. ▇▇. ▇▇▇▇▇▇
agrees that throughout the Part-Time Employment Period he will continue to be
bound by the Company's written employment policies, procedures and practices as
contained in its employee handbook.
Salary and Benefits.
ii. Salary. During the Part-Time
Employment Period, ▇▇. ▇▇▇▇▇▇ shall receive eleven thousand six hundred sixty
six dollars and sixty-seven cents ($11,666.67) per month, subject to standard
deductions and witSalary. During the Part-Time Employment Period, ▇▇. ▇▇▇▇▇▇
shall receive eleven thousand six hundred sixty six dollars and sixty-seven
cents ($11,666.67) per month, subject to standard deductions and withholdings.
iv. Stock Option. The Company and ▇▇.
▇▇▇▇▇▇ each acknowledge that, pursuant to the terms of his outstanding stock
option (the "Option"), the term and vesting of such Option will continue beyond
the SeparatStock Option. The Company and ▇▇. ▇▇▇▇▇▇ each acknowledge that,
pursuant to the terms of his outstanding stock option (the "Option"), the term
and vesting of such Option will continue beyond the Separation Date and for the
duration of the Part-Time Employment Period. ▇▇. ▇▇▇▇▇▇ further acknowledges
that the Option will cease vesting and terminate in accordance with its terms
upon completion of the Part-Time Employment Period.
vi. Health Insurance. The Company will
continue ▇▇. ▇▇▇▇▇▇'▇ health insurance benefits under the Company's group health
insurance plans during the Part-Time Employment Period. Thereafter, to the
extent permitted by law and by the Company's group health insurance plans, ▇▇.
▇▇▇▇▇▇ will be eligible to continue his health insurance benefits under the
federal COBRA law, at his own expense for up to eighteen (18) months and, later,
to convert to an individual policy if he wishes. At the end of the Part-Time
Employment Period, Mr. WilsHealth Insurance. The Company will continue ▇▇.
▇▇▇▇▇▇'▇ health insurance benefits under the Company's group health insurance
plans during the Part-Time Employment Period. Thereafter, to the extent
permitted by law and by the Company's group health insurance plans, ▇▇. ▇▇▇▇▇▇
will be eligible to continue his health insurance benefits under the federal
COBRA law, at his own expense for up to eighteen (18) months and, later, to
convert to an individual policy if he wishes. At the end of the Part-Time
Employment Period, ▇▇. ▇▇▇▇▇▇ will be provided with a separate notice of his
COBRA rights.
viii. Other Compensation. Except as
expressly provided herein, ▇▇. ▇▇▇▇▇▇ acknowledges that he will not receive (nor
is he entitled to) any additional compensation, severance or benefits
(including, but not limitedOther Compensation. Except as expressly provided
herein, ▇▇. ▇▇▇▇▇▇ acknowledges that he will not receive (nor is he entitled to)
any additional compensation, severance or benefits (including, but not limited
to, life insurance and disability insurance) from the Company.
d. Limitations on Authority. ▇▇. ▇▇▇▇▇▇
shall have no responsibilities or authority as an employee of the Company other
than as provided for above. ▇▇. ▇▇▇▇▇▇ hereby agrees not to represent or purport
to represent the Company in any manner whatsoever to any third party, including
any employee of the Company, unless authorized by the Company, in writing, to do
so or as otherwise necessary to carry out the duties requested oLimitations on
Authority. ▇▇. ▇▇▇▇▇▇ shall have no responsibilities or authority as an employee
of the Company other than as provided for above. ▇▇. ▇▇▇▇▇▇ hereby agrees not to
represent or purport to represent the Company in any manner whatsoever to any
third party, including any employee of the Company, unless authorized by the
Company, in writing, to do so or as otherwise necessary to carry out the duties
requested of him by the Board of Directors in accordance with paragraph 4.a.
f. Other Work Activities. Throughout the
Part-Time Employment Period, ▇▇. ▇▇▇▇▇▇ retains the right to engage in
employment, consulting or other work relationships in addition to his work for
the Company. The Company will make reasonable arrangements to enable ▇▇. ▇▇▇▇▇▇
to perform his work for the Company at such times and in such a manner so that
it will not interfere with other activities in which he may engage. Other Work
Activities. Throughout the Part-Time Employment Period, ▇▇. ▇▇▇▇▇▇ retains the
right to engage in employment, consulting or other work relationships in
addition to his work for the Company. The Company will make reasonable
arrangements to enable ▇▇. ▇▇▇▇▇▇ to perform his work for the Company at such
times and in such a manner so that it will not interfere with other activities
in which he may engage.
5. NONSOLICITATION. ▇▇. ▇▇▇▇▇▇ agrees that, during the
Part-Time Employment Period and for one (1) year thereafter, he will not, either
directly or through others, solicit or attempt to solicit any person (including
any entity) who is then an employee, consultant or independent contractor of the
Company to terminate his, her or its relationship with the Company in order to
become an employee, consultant or independent contractoNONSOLICITATION. ▇▇.
▇▇▇▇▇▇ agrees that, during the Part-Time Employment Period and for one (1) year
thereafter, he will not, either directly or through others, solicit or attempt
to solicit any person (including any entity) who is then an employee, consultant
or independent contractor of the Company to terminate his, her or its
relationship with the Company in order to become an employee, consultant or
independent contractor to or for any other person or entity.
7. PROPRIETARY INFORMATION OBLIGATIONS. ▇▇. ▇▇▇▇▇▇ hereby
agrees to be bound throughout the Part-Time Employment Period by the terms of
his Proprietary Information and Inventions Agreement (the "Proprietary
Information Agreement"), a copy of which is attached hereto as Exhibit A,
certain obligations under which continue after the termination of the Part-Time
Employment Period, as specified in the Proprietary InformatiPROPRIETARY
INFORMATION OBLIGATIONS. ▇▇. ▇▇▇▇▇▇ hereby agrees to be bound throughout the
Part-Time Employment Period by the terms of his Proprietary Information and
Inventions Agreement (the "Proprietary Information Agreement"), a copy of which
is attached hereto as Exhibit A, certain obligations under which continue after
the termination of the Part-Time Employment Period, as specified in the
Proprietary Information Agreement.
9. COMPANY PROPERTY. ▇▇. ▇▇▇▇▇▇ agrees to return to the
Company, within ten (10) business days of the Effective Date, all Company
documents (and all copies thereof) and other Company property in his possession,
or his control, including, but not limited to, Company files, notes, drawings,
records, business plans and forecasts, financial information, specifications,
computer-recorded information, tangible property, credit cards, entry cards,
identification badges and keys; and, any materials of any kind which contain or
embody any proprietary or confidential material of the Company (and all
reproductions thereof), including without limitation Company Inventions, Third
Party Information and Proprietary Information (as such terms are defined in the
Proprietary Information Agreement); provided, however, that if ▇▇. ▇▇▇▇▇▇
discovers any such documents or property in his possession after the expiration
of such 10-day period, ▇▇. ▇▇▇▇▇▇ agrees to return such property to the Company
as soon as practicable following discovery. ▇▇. ▇▇▇▇▇▇ agrees that, as of the
Separation Date, he will neither use Company property nor possess (except
pending the return of such property as contemplated in this paragraph 7) Company
property, except such property which the Board specifically authorizes him to
use or possess for the sCOMPANY PROPERTY. ▇▇. ▇▇▇▇▇▇ agrees to return to the
Company, within ten (10) business days of the Effective Date, all Company
documents (and all copies thereof) and other Company property in his possession,
or his control, including, but not limited to, Company files, notes, drawings,
records, business plans and forecasts, financial information, specifications,
computer-recorded information, tangible property, credit cards, entry cards,
identification badges and keys; and, any materials of any kind which contain or
embody any proprietary or confidential material of the Company (and all
reproductions thereof), including without limitation Company Inventions, Third
Party Information and Proprietary Information (as such terms are defined in the
Proprietary Information Agreement); provided, however, that if ▇▇. ▇▇▇▇▇▇
discovers any such documents or property in his possession after the expiration
of such 10-day period, ▇▇. ▇▇▇▇▇▇ agrees to return such property to the Company
as soon as practicable following discovery. ▇▇. ▇▇▇▇▇▇ agrees that, as of the
Separation Date, he will neither use Company property nor possess (except
pending the return of such property as contemplated in this paragraph 7) Company
property, except such property which the Board specifically authorizes him to
use or possess for the sole purpose of performing his duties under this
Agreement.
12. NONDISPARAGEMENT. ▇▇. ▇▇▇▇▇▇ agrees that he will not at
any time intentionally disparage the Company in any manner likely to be harmful
to the Company, its business reputation, or the personal or business reputation
of its directors, stockholders or employees, and the Company agrees that neither
it nor its representatives will at any time intentionally disparage ▇▇. ▇▇▇▇▇▇
or his personal or business reputation, provided that each party shall respond
accurately and fully to any question, inquiry or request for information when
requNONDISPARAGEMENT. ▇▇. ▇▇▇▇▇▇ agrees that he will not at any time
intentionally disparage the Company in any manner likely to be harmful to the
Company, its business reputation, or the personal or business reputation of its
directors, stockholders or employees, and the Company agrees that neither it nor
its representatives will at any time intentionally disparage ▇▇. ▇▇▇▇▇▇ or his
personal or business reputation, provided that each party shall respond
accurately and fully to any question, inquiry or request for information when
required by legal process.
14. CONFIDENTIALITY. The provisions of this Agreement shall be
held in strictest confidence by ▇▇. ▇▇▇▇▇▇ and the Company and shall not be
publicized or disclosed in any manner whatsoever. Notwithstanding the
prohibition in the preceding sentence: (a) the parties may disclose this
Agreement in confidence to their respective attorneys, accountants, auditors,
tax preparers, and financial advisors (and, in the case of ▇▇. ▇▇▇▇▇▇, to
members of his family); (b) the Company may disclose this Agreement as necessary
to fulfill standard or legally required corporate reporting or disclosure
requirements; and (c) the parties may disclose this Agreement insofar as such
disclosure may be necessary to enforce its terms or as otherwise required by
law. In particular (and without limitation), ▇▇. ▇▇▇▇▇▇ agrees not to discuss
the contents of this Agreement with present or former Company employees or other
personnel, except to the extent necessary to explain his
part-timeCONFIDENTIALITY. The provisions of this Agreement shall be held in
strictest confidence by ▇▇. ▇▇▇▇▇▇ and the Company and shall not be publicized
or disclosed in any manner whatsoever. Notwithstanding the prohibition in the
preceding sentence: (a) the parties may disclose this Agreement in confidence to
their respective attorneys, accountants, auditors, tax preparers, and financial
advisors (and, in the case of ▇▇. ▇▇▇▇▇▇, to members of his family); (b) the
Company may disclose this Agreement as necessary to fulfill standard or legally
required corporate reporting or disclosure requirements; and (c) the parties may
disclose this Agreement insofar as such disclosure may be necessary to enforce
its terms or as otherwise required by law. In particular (and without
limitation), ▇▇. ▇▇▇▇▇▇ agrees not to discuss the contents of this Agreement
with present or former Company employees or other personnel, except to the
extent necessary to explain his part-time employment relationship with the
Company or to carry out his duties under this Agreement.
16. RELEASE OF CLAIMS BY ▇▇. ▇▇▇▇▇▇. Except as otherwise set
forth in this Agreement, ▇▇. ▇▇▇▇▇▇ hereby releases, acquits and forever
discharges the Company, its officers, directors, agents, attorneys, servants,
employees, shareholders, successors, assigns and affiliates, of and from any and
all claims, liabilities, demands, causes of action, costs, expenses, attorneys
fees, damages, indemnities and obligations of every kind and nature, in law,
equity, or otherwise, known and unknown, suspected and unsuspected, disclosed
and undisclosed, arising out of or in any way related to agreements, events,
acts or conduct at any time prior to and including the date ▇▇. ▇▇▇▇▇▇ signs
this agreement, including but not limited to: any and all such claims and
demands directly or indirectly arising out of or in any way connected with ▇▇.
▇▇▇▇▇▇'▇ employment with the Company or the termination of that employment;
claims or demands related to salary, bonuses, commissions, stock, stock options,
or any other ownership interests in the Company, vacation pay, fringe benefits,
expense reimbursements, severance benefits, or any other form of compensation;
claims pursuant to any federal, state or local law, statute, or cause of action
including, but not limited to, the federal Civil Rights Act of 1964, as amended;
the federal Age Discrimination in Employment Act of 1967, as amended ("ADEA");
the federal Americans with Disabilities Act of 1990; the California Fair
Employment and Housing Act, as amended; tort law; contract law; wrongful
discharge; discrimination; harassment; fraud; defamation; emotional distress;
and breach of the implied covenant of good faith and fair dealing.
18. ADEA WAIVER. ▇▇. ▇▇▇▇▇▇ acknowledges that he is knowingly
and voluntarily waiving and releasing any rights he may have under the federal
Age Discrimination in Employment Act of 1967, as amended. He also acknowledges
that the consideration given for the waiver in the above paragraph is in
addition to anything of value to which he was already entitled. He further
acknowledges that he has been advised by this writing, as required by the ADEA
that: (a) his waiver and release do not apply to any claims that may arise after
the date he signs this Agreement; (b) he has been advised to consult with an
attorney prior to executing this Agreement; (c) he has twenty-one (21) days
within which to consider this Agreement (although he may choose to voluntarily
execute this Agreement earlier); (d) he has seven (7) days following the
execution of this Agreement to revoke the Agreement; (e) this Agreement shall
not be effective until the date upon which the revocation period has expired,
which shall be the eighth day after this Agreement is executed by ▇▇. ▇▇▇▇▇▇,
provided that the Company has also signed the Agreement by that date ("Effective
Date").
20. RELEASE BY THE COMPANY. The Company, on its behalf and its
directors, successors, assigns and affiliates, hereby releases, acquits and
forever discharges ▇▇. ▇▇▇▇▇▇ and his agents, successors, assigns and affiliates
from any and all claims, liabilities, demands, causes of action, costs,
expenses, attorneys fees, damages, indemnities, and obligations of every kind
and nature, in law, equity, or otherwise, known and unknown, suspected and
unsuspected, disclosed and undisclosed arising out of or in any way related to
agreements, events, acts or conduct at any time prior to and including the
Effective Date, including but not limited to: any act or omission by ▇▇. ▇▇▇▇▇▇
within the authorized course and scope of his employment with the Company, with
the exception of any claim arising out of his obligations under this Agreement
or his proprietary information obligations.
22. SECTION 1542 WAIVER. ▇▇. ▇▇▇▇▇▇ and the Company
acknowledge that they have read and understanSECTION 1542 WAIVER. ▇▇. ▇▇▇▇▇▇ and
the Company acknowledge that they have read and understand Section 1542 of the
Civil Code of the State of California which reads as follows:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
▇▇. ▇▇▇▇▇▇ and the Company hereby expressly waive and relinquish all rights and
benefits under that section and any law or legal principle of similar effect in
any jurisdiction with respect to the release of unknown and unsuspected claims
granted in this Agreement.
23. TERMINATION OF PART-TIME EMPLOYMENT BY THE COMPANY. In the
event that ▇▇. ▇▇▇▇▇▇ materially breaches any provision of this Agreement or the
Proprietary Information Agreement, the Company at its election may terminate ▇▇.
▇▇▇▇▇▇'▇ part-time employment by the Company and its obligation to make any
further payments to ▇▇. ▇▇▇▇▇▇ pursuant to paragraph 4 hereof effective upon
written notice to ▇▇. ▇▇▇▇▇▇. ▇▇. ▇▇▇▇▇▇ acknowledges that the Option will cease
vesting and terminate in accordance with the applicable terms of the option
agreement upon the termination of his part-time employment by the Company. All
provisions of this Agreement (other than paragraph 4) and all provisions of the
Proprietary Information Agreement shall survive such termination and remain in
full force and effect. The rights under this paragraph 14 are in addition to any
other rights or remedies at law or in equity, that the Company may have to
enforce this Agreement.
24. NO ADMISSIONS. It is understood and agreed by
▇▇. ▇▇▇▇▇▇ and the Company that this Agreement represents a compromise
settlement of various matters, and that the promises and payments in
consideration of this Agreement shall not be construed to be an admission of any
liability or obligation by either party to the other party or to any other
person.
25. NOTICES. All notices, instructions and other
communications given hereunder or in connection herewith shall be in writing.
Any such notice, instruction or communication shall be sent either (a) by
registered or certified mail, return receipt requested, postage prepaid, or (b)
via a reputable express courier service, in each case to the address set forth
below. Any such notice, instruction or communication shall be deemed to have
been delivered three (3) business days after it is mailed, by certified mail,
postage prepaid, return receipt requested, or one business day after it is sent
via a reputable nationwide overnight courier service.
If to the Company: Wonderware Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
If to ▇▇. ▇▇▇▇▇▇: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Either party may give any notice, instruction or communication in connection
with this Agreement using any other means (including personal delivery, telecopy
or ordinary mail), but no such notice, instruction or communication shall be
deemed to have been delivered unless and until it is actually received by the
party to whom it was sent. Either party may change the address to which notices,
instructions or communications are to be delivered by giving the other party to
this Agreement notice thereof in the manner set forth in this paragraph 16.
26. ENTIRE AGREEMENT. This Agreement, including Exhibit A,
constitutes the complete, final and exclusive embodiment of the entire agreement
between ▇▇. ▇▇▇▇▇▇ and the Company with regard to the subject matter hereof. It
is entered into without reliance on any promise or representation, written or
oral, other than those expressly contained herein. It may not be modified except
in a writing signed by ▇▇. ▇▇▇▇▇▇ and a duly authorized officer of the Company.
Each party has carefully read this Agreement, has been afforded the opportunity
to be advised of its meaning and consequences by his or its respective
attorneys, and signed the same of his or its own free will.
27. SUCCESSORS AND ASSIGNS. This Agreement shall bind the
heirs, personal representatives, successors, assigns, executors, and
administrators of each party, and inure to the benefit of each party, its heirs,
successors and assigns. However, because of the unique and personal nature of
▇▇. ▇▇▇▇▇▇'▇ duties under this Agreement, ▇▇. ▇▇▇▇▇▇ agrees not to delegate the
performance of his duties under this Agreement.
28. APPLICABLE LAW. This Agreement shall be deemed
to have been entered into and shall be construed and enforced in accordance with
the laws of the State of California as applied to contracts made and to be
performed entirely within California.
29. SEVERABILITY. If a court of competent jurisdiction
determines that any term or provision of this Agreement is invalid or
unenforceable, in whole or in part, then the remaining terms and provisions
hereof shall be unimpaired. Such court will have the authority to modify or
replace the invalid or unenforceable term or provision with a valid and
enforceable term or provision that most accurately represents the parties'
intention with respect to the invalid or unenforceable term or provision.
30. DISPUTE RESOLUTION. Unless otherwise prohibited by law or
specified below, all disputes, claims, and causes of action, in law or equity,
arising from or relating to this Agreement or its enforcement, performance,
breach, or interpretation shall be resolved solely and exclusively by
confidential final and binding arbitration held in Irvine, California through
Judicial Arbitration & Mediation Services/Endispute, Inc. ("JAMS") under the
then existing JAMS arbitration rules. However, nothing in this section is
intended to prevent either party from obtaining injunctive relief in court to
prevent irreparable harm pending the conclusion of any such arbitration.
31. SECTION HEADINGS. The section and paragraph
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
32. COUNTERPARTS. This Agreement may be executed in
two counterparts, each of which shall be deemed an original, all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly authorized and caused this
Agreement to be executed as follows:
▇▇▇▇ ▇. ▇▇▇▇▇▇ WONDERWARE CORPORATION
an individual a Delaware corporation
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇ ▇. ▇▇▇▇▇▇ President
Date: September 9, 1996 Date: October 1, 1996
EXHIBIT A
Proprietary Information Agreement
WONDERWARE CORPORATION
Proprietary Information
And Inventions Agreement
In consideration of my employment or continued employment by Wonderware
Corporation, a Delaware corporation (the "Company"), and the compensation now
and hereafter paid to me, I hereby agree as follows:
1. Recognition of Company's Rights; Nondisclosure. At all times during
the term of my employment and thereafter, I will hold in strictest confidence
and will not disclose, use, lecture upon or publish any of the Company's
Proprietary Information (defined below), except as such disclosure, use or
publication may be required in connection with my work for the Company, or
unless an officer of the company expressly authorizes such in writing. I hereby
assign to the Company any rights I may have or acquire in any such Proprietary
Information and recognize that all Proprietary Information shall be the sole
property of the Company and its assigns, and the Company and its assigns shall
be the sole owner of all patent rights, copyrights, mask work rights, trade
secret rights and all other rights throughout the world (collectively,
"Proprietary Rights") in connection therewith.
The term "Proprietary Information" shall mean trade secrets
confidential knowledge, data or any other proprietary information of the
Company. By way of illustration but not limitation, "Proprietary Information"
includes (a) inventions, mask works, trade secrets, ideas, processes, formulas,
source and object codes, data, programs, other works of authorship, know-how,
improvements, discoveries, developments, designs and techniques (hereinafter
collectively referred to as "Inventions"); and (b) information regarding plans
for research development, new products, marketing and selling, business plans,
budgets and unpublished financial statements, licenses, prices and costs,
suppliers and customers; and information regarding the skills and compensation
of other employees of the Company.
2. Third Party Information. I understand, in addition, that the Company
has received and in the future will receive from third parties confidential or
proprietary information ("Third Party Information") subject to a duty on the
Company's part to maintain the confidentiality of such information and to use it
only for certain limited purposes. During the term of my employment and
thereafter, I will hold Third Party Information in the strictest confidence, and
will not disclose (to anyone other than Company personnel who need to know such
information in connection with their work for the Company) or use, except in
connection with my work for the Company, Third Party Information unless
expressly authorized by an officer of the Company in writing.
3. Assignment of Inventions.
3.1 I hereby assign to the Company all my right, title and
interest in and to any and all Inventions (and all Proprietary Rights
with respect thereto) whether or not patentable or registrable under
patent, copyright or similar statutes, made or conceived or reduced to
practice or learned by me, either alone or jointly with others, during
the period of my employment with the Company. I recognize that the
Agreement does not require assignment of any invention which qualifies
fully for protection under Section 2870 of the California Labor Code
(hereinafter "Section 2870"), which provides as follows:
(a) 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.
(2) Result from any work performed by
the employee for the employer.
(b) 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 subdivision (a), the provision
is against the public policy of this state and is unenforceable.
3.2 I also assign to or as directed by the Company all my
right, title and interest in and to any and all Inventions, full title to which
is required to be in the United States by a contract between the Company and the
United States or any of its agencies.
3.3 I acknowledge that all original works of authorship which
are made by me (solely or jointly with others) within the scope of my employment
and which are protectable by copyright are "works made for hire," as the term is
defined in the United State copyright Act (17 U.S.C., Section 101). Inventions
assigned to or as directed by the Company by this paragraph 3 are hereinafter
referred to as "Company Inventions."
4. Enforcement of Proprietary Rights. I will assist the Company in
every proper way to obtain and from time to time enforce United States and
foreign Proprietary Rights relating to Company Inventions in any and all such
countries. To that end I will execute, verify and deliver such documents and
perform such other acts (including appearances as a witness) as the Company may
reasonable request for use in applying for, obtaining, perfecting, evidencing,
sustaining and enforcing such Proprietary Rights and the assignment thereof. In
addition, I will execute, verify and deliver assignments of such Proprietary
Rights to the Company or its designee. My obligation to assist the Company with
respect to Proprietary Rights relating to such Company Inventions in any and all
countries shall continue beyond the termination of my employment, but the
Company shall compensate me at a reasonable rate after my termination for the
time actually spent by me at the Company's request on such assistance.
In the event the company is unable for any reason, after
reasonable effort, to secure my signature on any document needed in connection
with the actions specified in the preceding paragraph, I hereby irrevocably
designate and appoint the Company and its duly authorized officers and agents as
my agent and attorney in fact, which appointment is coupled with an interest to
act for and in my behalf to execute, verify and file any such documents and to
do all other lawfully permitted acts to further the purposes of the preceding
paragraph thereon with the same legal force and effect as if executed by me. I
hereby waive and quitclaim to the Company any and all claims, of any nature
whatsoever, which I now or may hereafter have for infringement of any
Proprietary Rights assigned hereunder to the Company.
5. Obligation to Keep Company Informed. During the period of my
employment, and for six (6) months after termination of my employment with the
Company, I will promptly disclose to the Company fully and in writing all
Inventions authored, conceived or reduced to practice by me, either alone or
jointly with others. In addition, after termination of my employment, I will
disclose all patent applications filed by me, or on my behalf, within a year
after termination of employment. At the time of each such disclosure, I will
advise the company in writing of any Inventions that I believe fully qualify for
protection under Section 2870; and I will at that time provide to the Company in
writing all evidence necessary to substantiate the belief. I understand that the
Company will keep in confidence and will not disclose to third parties without
my consent any proprietary information disclosed to third parties without my
consent any proprietary information disclosed in writing to the Company pursuant
to this Agreement relating to Inventions that qualify fully for protection under
the provisions of Section 2870. I will preserve the confidentiality of any
Invention that does not fully qualify for protection under Section 2870.
I agree to keep and maintain adequate and current records (in the form of notes,
sketches, drawings and in any other form that may be required by the Company) of
all Proprietary Information developed by me and all Inventions made by me during
the period of my employment at the Company, which records shall be available to
and remain the sole property of the Company at all times.
6. Prior Inventions. Inventions, if any, patented or unpatented, which
I made prior to the commencement of my employment with the Company are excluded
from the scope of this Agreement. To preclude any possible uncertainty, I have
set forth on Exhibit A attached hereto, a complete list of all Inventions that I
have, alone or jointly with others, conceived, developed or reduced to practice
or caused to be conceived, developed or reduced to practice prior to the
commencement of my employment with the Company, that I consider to be my
property or the property of the third parties and that I wish to have excluded
from the scope of this Agreement. If disclosure of any such Invention on Exhibit
A would cause me to violate any prior confidentiality agreement, I understand
that I am not to list such Inventions in Exhibit A, but am to inform the Company
that all such Inventions have not been listed for that reason.
7. Additional Activities. I agree that during the period of my
employment by the Company I will not, without the Company's express written
consent, engage in any employment of business activity other than for the
Company, and for the period of my employment by the Company and for one (1) year
after the date of termination of my employment by the Company I will not (i)
induce any employee of the company to leave the employ of the Company or (ii)
solicit the business of any client or customer of the Company (other than on
behalf of the Company).
8. No Improper Use of Materials. During my employment by the Company I
will not improperly use or disclose any confidential information or trade
secrets, if any, of any former employer or any other person to whom I have an
obligation of confidentiality, and will not bring onto the premises of the
Company any unpublished documents or any property belonging to any former
employer or any other person to whom I have an obligation of confidentiality
unless consented to in writing by the former employer or person. I will use in
the performance of my duties only information which is generally known and used
by persons with training and experience comparable to my own, which is common
knowledge in the industry or otherwise legally in the public domain, or which is
otherwise provided or developed by the Company.
9. No Conflicting Obligation. I represent that my performance of all
the terms of this Agreement and as an employee of the Company does not and will
not breach any agreement to keep in confidence information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree I will not enter into, any agreement either written or oral in
conflict herewith.
10. Return of Company Documents. When I leave the employ of the
Company, I will deliver to the Company any and all drawings, notes, memoranda,
specifications, devices, formulas, and documents, together with all copies
thereof, and any other material containing or disclosing any Company Inventions,
Third Party Information or Proprietary Information of the Company, including
disks and other storage media, filing cabinets or other work areas, is subject
to inspection by Company personnel at any time with or without notice. Prior to
leaving, I will cooperate with the Company in completing and signing the
Company's termination statement for technical and management personnel.
Some agreements include a discussion of the employee's possible civil
and criminal liability in the event of a violation thereof. The following is a
sample provision:
"Employee has been informed and acknowledges that the
unauthorized taking of the Company's trade secrets:
i. could result in civil liability under California Civil
code Section 3426, and that,if willful, could result in an award for
triple the amount of the Company's damages and attorneys' fees; and
ii. is a crime under California Penal Code Section 499(c),
punishable by imprisonment for a time not exceeding one year, or by a
fine not exceeding five thousand dollars ($5,000), or by both."
11. Legal and Equitable Remedies. Because my services are personal and
unique and because I may have access to and become acquainted with the
Proprietary Information of the Company, the Company shall have the right to
enforce this Agreement and any of its provisions by injunction, specific
performance or other equitable relief, without bond, without prejudice to any
other rights and remedies that the Company may have for a breach of this
Agreement.
12. Notices. Any notices required or permitted hereunder shall be given
to the appropriate party at the address specified below or at such other address
as the party shall specify in writing. Such notice shall be deemed given upon
personal delivery to the appropriate address or if sent by certified or
registered mail, three days after the date of mailing.
13. General Provisions.
13.1 Governing Law. This Agreement will be governed by
and construed according to the laws of the State of California.
13.2 Entire Agreement. This Agreement is the final, complete
and exclusive agreement of the parties with respect to the subject matter hereof
and supersedes and merges all prior discussions between us. No modification of
or amendment to this Agreement, nor any waiver of any rights under this
Agreement, will be effective unless in writing signed by the party to be
charged. Any subsequent change or changes in my duties, salary or compensation
will not affect the validity or scope of this Agreement. As used in this
Agreement, the period of my employment includes any time during which I may be
retained by the Company as a consultant.
13.3 Severability. If one or more of the provisions in this
Agreement are deemed unenforceable by law, then such provision will be deemed
stricken from this Agreement and the remaining provisions will continue in full
force and effect.
13.4 Successors and Assigns. This Agreement will be binding
upon my heirs, executors, administrators and other legal representatives and
will be for the benefit of the Company, its successors and its assigns.
13.5 Survival. The provisions of this Agreement shall survive
the termination of my employment and the assignment of this Agreement by the
Company to any successor in interest or other assignee.
13.6 Employment. I agree and understand that nothing in this
Agreement shall confer any right with respect to continuation of employment by
the Company, nor shall it interfere in any way with my right or the Company's
right to terminate my employment at any time, with or without cause.
13.7 Waiver. No waiver by the Company of any breach of this
Agreement shall be a waiver of any preceding or succeeding breach. No waiver by
the Company of any right under this Agreement shall be construed as a waiver of
any other right. The Company shall not be required to give notice to enforce
strict adherence to all terms of this Agreement.
This Agreement shall be effective as of the first day of my employment
with the Company, namely November, 1989.
I UNDERSTAND THAT THIS AGREEMENT AFFECTS MY RIGHTS TO INVENTIONS I MAKE
DURING MY EMPLOYMENT, AND RESTRICTS MY RIGHT TO DISCLOSE OR USE THE COMPANY'S
CONFIDENTIAL INFORMATION DURING OR SUBSEQUENT TO MY EMPLOYMENT.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE
COMPLETELY FILLED OUT EXHIBIT A TO THIS AGREEMENT.
Dated: November 5, 1993.
/s/ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
ACCEPTED AND AGREED TO:
Wonderware Corporation,
A Delaware corporation
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its Authorized Officer