EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made the 16th day of
November, 2005 by and between NEOWARE SYSTEMS, INC., a Delaware corporation
("Employer"), and WEI CHING ("Employee").
W I T N E S S E T H :
WHEREAS, Employee has been employed by Maxspeed Corporation., a
California company ("Maxspeed"); and
WHEREAS, Employer and Maxspeed have entered into an Agreement and Plan
of Merger (the "Merger Agreement") dated as of October 25, 2005, pursuant to
which Rabbit Corporation, a wholly-owned subsidiary of Employer ("Merger Sub")
will merge (the "Merger") with and into Maxspeed; and
WHEREAS, the execution of this Agreement by Employee and Employer is a
condition to the obligation of Employer to consummate and effect the Merger; and
WHEREAS, Employer desires to employ Employee and Employee desires to
accept such employment, all upon and subject to the terms and conditions
contained in this Agreement.
NOW, THEREFORE, the parties to this Agreement, for good and valuable
consideration and intending to be legally bound, hereby agree as follows:
Section 1. Employment.
(a) Duties. Employer agrees to employ Employee as Executive Vice
President, Asia of Employer responsible for managing the integration of the
Maxspeed business, achieving the operating plan for the integrated Maxspeed
business, participating in the executive management of Employer, establishing
and managing business development and sales channels in Asia and managing local
Asia technical resources. Employee agrees to perform such duties and services
consistent with Employee's executive position and to perform such other duties
and to serve in such capacities at such location in California or Asia as may be
determined and assigned to him from time to time by the Chief Executive Officer
or Board of Directors of Employer, it being expressly provided that the duties
of Employee may be enlarged or diminished, as the Chief Executive Officer or the
Board of Directors determines, provided, however, that Employee's
responsibilities shall be consistent with his executive status. Employee will
use his best efforts to perform his duties and discharge his responsibilities
pursuant to this Agreement competently, carefully and faithfully.
(b) Devotion of Time. Except as provided herein, Employee will devote
his entire business time, attention and energies to the affairs of Employer.
Employee will not enter the employ of or serve as a consultant to, or in any way
perform any services with or without compensation to, any other person, business
or organization without the prior written consent of the Board of Directors of
Employer, provided that Employee shall be permitted to devote a limited amount
of time, without compensation, to charitable or similar activities, provided,
however, that during the first six (6) months of the initial Term (as defined
below), Employee may devote three (3) days per month, and thereafter one (1) day
per month, to the affairs of ExecuSoft Corporation.
Section 2. Duration and Termination of Employment.
(a) Term. The term of this Agreement shall begin as of the date hereof
and shall continue for an initial period of one (1) year unless terminated
pursuant to this Section 2 hereof, with or without cause, and shall
automatically continue thereafter year-to-year unless terminated pursuant to
this Section 2 hereof, with or without cause (collectively, the "Term").
(b) Termination by Employer. Employer may terminate Employee's
employment pursuant to this Agreement as follows:
(i) If Employee shall die during the Term, Employee's
employment shall terminate, except that Employee's legal representatives shall
be entitled to receive the base salary provided for under Section 3 hereof
prorated to the last day of the month in which Employee's death occurs.
(ii) If during the Term, Employee shall become physically or
mentally disabled whether totally or partially, so that Employee is unable
substantially to perform Employee's services hereunder for a period of four (4)
consecutive months, Employer may, by written notice to Employee, terminate
Employee's employment hereunder. In the event of Employee's termination pursuant
to this Section 2(b)(ii), Employee shall be entitled to receive the payments
described in Section 2(c)(i), less any amounts received by Employee from any
source for disability-related benefits.
(iii) Employer may, by written notice to Employee, terminate
Employee's employment hereunder for "cause." For the purposes of this Agreement,
"cause" shall mean Employee's termination only upon: (A) Employee's continued
neglect of such assigned duties and responsibilities as shall be consistent with
the terms of this Agreement or Employee's responsibilities after receipt of a
written warning of specific deficiencies and Employee's failure to cure said
deficiencies within thirty (30) days; or (B) Employee's engaging in willful
misconduct which is demonstrably injurious to Employer; or (C) Employee's
committing a felony or an act of fraud against or the misappropriation of
property belonging to Employer; or (D) Employee's breaching in any material
respect the terms of this Agreement and Employee's failure to cure the breach
within thirty (30) days after written notice of the breach from Employer.
(iv) Employer may terminate Employee's employment hereunder
"without cause" upon thirty (30) days prior written notice. A termination
"without cause" shall mean the termination of Employee's employment by Employer
under this Agreement other than pursuant to Sections 2(b)(i), (ii) or (iii)
above.
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(c) Severance; Change in Control.
(i) If Employer terminates this Agreement during the first
twenty four (24) months of the Term for any reason other than pursuant to
Section 2(b)(i), (ii) or (iii) above, Employer shall continue Employee's then
current annual base salary and health benefits for a period of twelve (12)
months.
(ii) In the event of a Change in Control (as defined below)
during the Term, should Employee not be offered a comparable position by
Employer or by Employer's successor, or if Employee does not accept, in his sole
discretion, employment in any other capacity offered by the successor, Employer
agrees to: (a) continue to pay Employee his base salary as provided in Section
3(a), which shall be in lieu of any payments under Sections 2(c)(i) or 3(a), for
a period of one year from the date of termination; (b) pay Employee an amount
equal to the average of the annual bonus that Employee earned over the prior
three years; (c) pay for Employer's portion of Employer's health care costs
under COBRA for one year; and (d) vest any outstanding stock options granted to
Employee. In the event that Employee is offered a comparable position following
a Change in Control, or Employee accepts, in his sole discretion, employment in
any other capacity offered by Employer or Employer's successor, all of
Employee's outstanding stock options will be vested in such a manner that
Employee will receive the economic benefits of this vesting one year after the
Change in Control, provided Employee is still employed by Employer or Employer's
successor at that time. The mechanics of such vesting will be determined based
on the structure of the Change in Control transaction. For the purposes of this
section, "Change in Control" shall have the meaning set forth in Section 14 of
Employer's 2004 Equity Incentive Plan (the "Plan"), a copy of which is attached
as Exhibit A.
(d) Employee Obligations. Notwithstanding the foregoing, no amount will
be paid or benefit provided under Section 2(c)(i) or 2(c)(ii) unless and until
Employee executes and delivers to Employer a release substantially identical to
that attached hereto as Exhibit B and the Revocation Period described therein
has expired. In the event that Employee violates any of the provisions of
Sections 4 or 6 hereunder, Employer's obligation to make payments under Section
2(c) shall terminate immediately upon notice transmitted by Employer to
Employee.
(e) Termination by Employee. Employee may terminate his employment
hereunder upon thirty (30) days prior written notice to Employer.
(f) Survival. Notwithstanding any termination of Employee's employment
as provided in this Section 2 or otherwise, the provisions of Sections 4, 5, 6
and 7 shall remain in full force and effect.
Section 3. Compensation.
(a) Base Salary. Employee's base salary shall be $216,320 per annum,
payable in equal, bi-weekly installments, subject to annual review and
adjustments at the discretion of the Chief Executive Officer and the
Compensation and Stock Option Committee of the Board of Directors, provided that
Employee's base salary shall not be substantially reduced unless comparable
reductions have been made to the base salaries of similarly situated employees.
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(b) Bonus; Options. Employee shall be entitled to receive a bonus of up
to 50% of his base salary and shall be granted options to acquire 100,000 shares
of Employer Common Stock under the Plan, subject to approval by Employer's
Compensation and Stock Option Committee (the "Compensation Committee".) The
bonus, which shall be subject to approval by Employer's Compensation Committee,
shall be payable on achievement of agreed upon business milestones and personal
objectives.
(c) Employee Benefits. Employee shall participate in Employer's
standard employee benefit plans (for example, life insurance, disability
insurance, health and dental insurance) available to similarly situated
employees.
Section 4. Covenants not to Solicit.
(a) Non-Solicitation. Employee agrees to be bound by the
Non-Solicitation and Confidentiality Agreement between Employer and Employee,
the form of which is attached hereto as Exhibit C and incorporated herein, and
which shall be executed by Employer and Employee concurrently with this
Agreement (the "Non-Solicitation and Confidentiality Agreement") with respect to
the non-solicitation of customers and employees.
(b) Worldwide. The parties acknowledge that the market for products of
the type sold by Employer is worldwide, and that, in this market, products from
any nation compete with products from all other nations. Accordingly, in order
to secure to Employer the benefits of this Section 4, the parties agree that the
provisions of this Section 4 shall apply to each of the states and counties of
the United States and to each nation worldwide.
(c) Severability. The parties intend that the covenants contained in
the preceding paragraphs shall be construed as a series of separate covenants,
one for each state of the United States, and each nation. If, in any judicial
proceeding, a court shall refuse to enforce any of the separate covenants (or
any part thereof) deemed included in said paragraphs, then such unenforceable
covenant (or such part) shall be deemed eliminated from this Agreement for the
purpose of those proceedings to the extent necessary to permit the remaining
separate covenants (or portions thereof) to be enforced. In the event that the
provisions of this Section 4 should ever be deemed to exceed the time or
geographic limitations, permitted by applicable law, then such provisions shall
be reformed to the maximum time or geographic limitations, as the case may be,
permitted by applicable law.
(d) Restrictions Reasonable. Employee acknowledges that the
restrictions imposed by this Agreement are reasonable and necessary in order to
protect the legitimate business interests of Employer and will not preclude
Employee from becoming gainfully employed following his termination of
employment with Employer.
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Section 5. Employee's Representations.
Employee represents and warrants to Employer that Employee is familiar
with and approves the covenants not to solicit set forth in Section 4,
including, without limitation, the reasonableness of the length of time, scope
and geographic coverage of those covenants.
Section 6. Protection of Confidential Information.
In view of the fact that the Employee's work for Employer will bring
him into close contact with many confidential affairs of Employer not readily
available to the public, Employee agrees to be bound by each of the terms and
provisions of the Non-Solicitation and Confidentiality Agreement.
Section 7. Remedies.
(a) Employee Violations. If Employee violates any of the provisions of
Sections 4 or 6 hereof, Employer shall have the following rights and remedies:
(i) In the event of a breach, or a threatened breach, the
right and remedy to have the provisions of this Agreement specifically enforced
by any court having equity jurisdiction, it being acknowledged and agreed that
any such breach or threatened breach will cause irreparable injury to Employer
and that money damages will not provide an adequate remedy to Employer;
(ii) In the event of an actual breach, the right to recover
damages for all losses, actual and contingent, and the right to require the
Employee to account for and pay over to Employer all profits or other benefits
(collectively "Benefits") derived or received by the Employee as a result of any
transactions constituting such a breach, and the Employee hereby agrees to
account for and pay over such Benefits to Employer; and
(iii) The immediate termination of Employer's obligation to
make payments pursuant to Section 2(c).
(b) Rights and Remedies Cumulative. Each of the rights and remedies
enumerated above shall be independent of the other, and shall be severally
enforceable, and all of such rights and remedies shall be in addition to, and
not in lieu of, any other rights and remedies available to Employer at law or in
equity.
Section 8. Intellectual Property.
(a) Owner of Intellectual Property. Employer shall be the sole owner of
all the products and proceeds of the Employee's services to Employer, including,
but not limited to, all materials, ideas, concepts, formats, designs,
suggestions, developments, arrangements, packages, computer programs,
inventions, patent applications, patents, copyrights, trademarks and other
intellectual properties (collectively, "Intellectual Property") that Employee
may acquire, obtain, develop or create in connection with the Employee's
employment hereunder, free and clear of any claims by Employee (or anyone
claiming under Employee) of any kind or character whatsoever (other than
Employee's right to receive payments hereunder).
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(b) Assistance. Employee shall, at the request of Employer, execute
such assignments, certificates or other instruments as Employer may from time to
time deem necessary or desirable to evidence, establish, maintain, perfect,
protect, enforce or defend its rights, title and interest in or to any such
Intellectual Property. Employee has been notified and understands that the
provisions of Section 8 of this Agreement do not apply to any Invention that
qualifies fully under the provisions of Section 2870 of the California Labor
Code, which states as follows:
(i) 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
actually or demonstrably anticipated research or development
of the employer, or
(2) Result from any work performed by the employee
for the employer.
(ii) 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.
Section 9. Miscellaneous.
(a) Notices. All notices, reports or other communications required or
permitted to be given hereunder shall be in writing to both parties and shall be
deemed given on the date of delivery, if delivered, or three days after mailing,
if mailed first-class mail, postage prepaid, to the following addresses:
(i) If to Employee:
Wei Ching
160 Hanna Way
Menlo Park, CA 94025
(650) 327-8788
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(ii) If to Employer:
Neoware Systems, Inc.
3200 Horizon Drive
King of Prussia, PA 19406
Telephone No.: 610-277-8300
Facsimile: 610-275-5739
Attention: Chief Financial Officer
or to such other address as any party hereto may designate by notice given as
herein provided.
(b) Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the Commonwealth of Pennsylvania,
without regard to its rule or principles relating to conflicts of laws.
(c) Amendments. This Agreement shall not be changed or modified in
whole or in part except by an instrument in writing signed by each party.
(d) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
(e) Effect of Headings. The section headings herein are for convenience
only and shall not affect the construction or interpretation of this Agreement.
(f) Entire Agreement. This Agreement and the exhibits hereto constitute
the entire agreement among the parties with respect to the subject matter hereof
and supersede all other prior agreements and understandings, both written and
oral, among the parties with respect to the subject matter hereof.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
NEOWARE SYSTEMS, INC.
By: /s/KEITH D. SCHNECK
-----------------------------------------
Keith D. Schneck, Chief Financial Officer
EMPLOYEE
/s/ WEI CHING
---------------------------------------------
Wei Ching
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EXHIBIT A
2004 Equity Incentive Plan
EXHIBIT B
Release of Claims
_______________ ("Employee") hereby fully and forever releases and
discharges Neoware Systems, Inc. ("Employer") and its parents, affiliates and
subsidiaries, including all predecessors and successors, assigns, officers,
directors, trustees, employees, agents and attorneys, past and present, from any
and all claims, demands, liens, agreements, contracts, covenants, actions,
suits, causes of action, obligations, controversies, debts, costs, expenses,
damages, judgments, orders and liabilities, of whatever kind or nature, direct
or indirect, in law, equity or otherwise, whether known or unknown, arising out
of Employee's employment by Employer or the termination thereof, including, but
not limited to, any claims for relief or causes of action under Federal, state
or local statute, ordinance or regulation regarding discrimination in employment
and any claims, demands or actions based upon alleged wrongful or retaliatory
discharge or breach or contract under any state or Federal law. This release
shall include a release of all claims for attorneys' fees.
Employee expressly understands and acknowledges that it is possible
that unknown losses or claims exist or that present losses may have been
underestimated in amount or severity. Employee expressly accepts and assumes the
risk of such unknown or underestimated losses or claims and acknowledges and
agrees that the benefits to be provided to him pursuant to this Agreement fully
compensate him for such risks. Employee expressly waives all rights under
California Civil Code Section 1542, which provides:
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 THE EXECUTING OF
THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
[IF APPLICABLE]EMPLOYEE AGREES THAT THIS RELEASE SPECIFICALLY INCLUDES
A RELEASE OF ANY AND ALL CLAIMS ARISING UNDER THE AGE DISCRIMINATION IN
EMPLOYMENT ACT OF 1967, AS AMENDED ("ADEA"), AND ANY STATE OR LOCAL
DISCRIMINATION LAWS. EMPLOYEE ACKNOWLEDGES THAT HE IS BEING GIVEN TWENTY-ONE
(21) DAYS IN WHICH TO CONSIDER WHETHER HE WISHES TO SIGN THIS RELEASE. MOREOVER,
EMPLOYEE AGREES THAT, ONCE HE SIGNS THE RELEASE, HE SHALL THEN HAVE SEVEN (7)
DAYS IN WHICH TO CHANGE HIS MIND AND REVOKE IT (THE "REVOCATION PERIOD"). IF
EMPLOYEE WISHES TO REVOKE THIS RELEASE, HE MUST SEND THE REVOCATION IN WRITING
BY OVERNIGHT MAIL TO ______________ (NAME AND ADDRESS OF REPRESENTATIVE).]
Employee agrees that, while the Release does not prevent him from
filing a charge with the Equal Employment Opportunity Commission ("EEOC"), if
any such charge, complaint, lawsuit or claim is filed in Employee's name or on
his behalf against any of the persons or entities released herein, Employee will
not accept or seek any personal relief, whether monetary or otherwise.
Employee acknowledges that he has been advised to have this Release
reviewed by counsel of his choice.
EXHIBIT C
NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT
THIS NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT is made and entered
into this day of , 200 , by and between NEOWARE SYSTEMS,
INC., a Delaware corporation, for and on behalf of itself, its parents,
subsidiaries, affiliates and related entities (collectively, the "Company")
and ("Employee").
RECITALS
The Company has agreed to employ Employee in the capacity of .
In and as a result of his or her employment by the Company, Employee
will be making use of, acquiring and/or adding to confidential information of a
special and unique nature and value relating to such matters as the Company's
trade secrets, systems, procedures, product formulas, cost and price information
and lists of clients.
As an inducement to the Company to hire Employee, Employee is willing
to agree to protect confidential information of the Company and to refrain from
soliciting customers or employees of the Company as more fully provided in this
Agreement.
AGREEMENT
In consideration of the foregoing, of the mutual promises herein
contained, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
1. During the term of his or her employment and for a period of three
(3) years thereafter, Employee agrees to keep secret and retain in the strictest
confidence all Confidential Information and Trade Secrets of the Company learned
by Employee heretofore or hereafter, and not to use them for his or her own
benefit or disclose them to anyone outside of the Company, either during or
after the term of his or her employment, except as required for the performance
of Employee's duties as an employee of the Company or with the Company's express
written consent.
2. Employee agrees to deliver promptly to the Company on the
termination of his or her employment, or at any time the Company may so request,
all memoranda, notes, records, reports, manuals, drawings and other documents
(and all copies thereof in whatever medium they may be recorded or stored)
relating to the Company's business and all property associated therewith, which
Employee may then possess or have under Employee's control.
3. For purposes of this Agreement, "Confidential Information" shall
mean information disclosed to Employee or learned or made known to Employee as a
consequence of or through his or her employment by the Company, not generally
known in the industry in which the Company is or may become engaged, about the
Company's clients, customers, products, processes, and services, including, but
not limited to: information relating to research, development, source codes,
object codes or other technology-based information or products, inventions,
manufacturing, purchasing, accounting, engineering, marketing, merchandising,
and selling as well as lists of actual or prospective customers, customer
contacts, pricing strategy, sources of suppliers and materials, accounting
records, operating and cost data or other company financial information,
compilations of information, drawings, proposals, job notes, reports, records
and specifications, inventions, technology, patent applications and/or any other
proprietary information as may exist or be developed from time to time by the
Company or its affiliates. For purposes of this Agreement, "Trade Secret" means
the whole or any portion or phase of any scientific or technical information,
design, process, formula, or improvement which is secret and is not generally
available to the public, and which gives one who uses it an advantage over
competitors who do not know of or use it.
4. Employee agrees that upon termination of Employee's employment,
Employee shall return any and all customer lists and client lists in his
possession, custody or control to the Company and shall not, during the term of
his or her employment and for a period of three (3) years thereafter, directly
or indirectly, use the Company's customer or client lists for his or her own
benefit or disclose the Company's customer or client lists to any person firm or
corporation.
5. During the Term of this agreement and for three (3) years
thereafter, Employee shall not disclose or use in any manner, directly or
indirectly, and shall use Employee's best efforts and shall take all reasonable
precautions to prevent the disclosure of, any such Trade Secrets or other
Confidential Information, except to the extent required in the performance of
Employee's duties or obligations to the Company hereunder or by express prior
written consent of a duly authorized officer or director of the Company (other
than Employee).
6. Employee agrees that during the term of Employee's employment and
for a period of one (1) year thereafter, Employee shall not either directly or
indirectly, on his or her own behalf or in the service or on behalf of others,
solicit, divert, or appropriate, or attempt to solicit, divert, or appropriate,
to any Competing Business, any person or entity that was a customer or client of
the Company at any time during the 12-month period preceding such solicitation.
For purposes of this paragraph 6, a "Competing Business" is any business engaged
in the sale or provision of products and/or services comparable to the products
and/or services offered by the Company at any time during the term of Employee's
employment by the Company.
7. Employee agrees that during the term of Employee's employment and
for a period of one (1) year thereafter, Employee shall not, either directly or
indirectly, on his own behalf or in the service or on behalf of others, solicit,
divert or hire away, or attempt to solicit, divert, or hire away, to any other
business, any person employed by the Company, whether or not such employee is a
full-time employee or a temporary employee of the Company and whether or not
such employment is pursuant to a written agreement and whether or not such
employment is for a determined period or is at will.
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8. It is the express intention of Employee and the Company to comply
with the provisions of all applicable law relating to the covenants contained in
paragraphs 6 and 7 above. Employee stipulates that the provisions of this
Agreement are not oppressive or overly burdensome to Employee and will not
prevent Employee from earning an income following termination of this Agreement.
Employee warrants and represents that:
(a) Employee is familiar with the non-solicitation covenants;
(b) Employee has discussed or acknowledges the opportunity to
discuss the provisions of the non-solicitation covenants contained herein with
Employee's attorney and has concluded that such provisions (including, without
limitation, the right to equitable relief and the length of time provided for
herein) are fair, reasonable and just under the circumstances;
(c) Employee is fully aware of the obligations, limitations
and liabilities included in the non-solicitation covenants contained in this
Agreement;
(d) The scope of activities covered hereby are substantially
similar to those activities to be performed by Employee under this Agreement;
(e) The twelve (12) month non-solicitation periods are
reasonable restrictions, giving consideration to the following factors: (1)
Employee and the Company reasonably anticipate that their employment
relationship, although terminable at will, will continue in effect for
sufficient duration to allow Employee to attain superior bargaining strength and
an ability for unfair competition with respect to the customers covered hereby;
(2) the duration of the twelve (12) month non-solicitation period is a
reasonably necessary period to allow the Company to restore its position of
equivalent bargaining strength and fair competition with respect to the
Company's Business covered hereby; and (3) historically, employees of all types
have remained with the Company for a duration of longer than the duration of the
twelve (12) month non-solicitation period; and
9. Employee recognizes that the services to be performed by Employee
are of a special, unique, unusual, extraordinary and intellectual character
which gives them particular value, a loss of which cannot be reasonably or
adequately compensated in damages in an action at law. Employee therefore
expressly agrees that the Company, in addition to any other rights or remedies
which the Company may possess, shall be entitled to injunctive and other
equitable relief to prevent a breach of this Agreement by Employee. If Employee
violates any of the provisions of paragraphs 1 through 7 hereof, the Company
shall have the following rights and remedies:
(a) In the event of a breach, or a threatened breach, the
right and remedy to have the provisions of this Agreement specifically enforced
by any court having equity jurisdiction, it being acknowledged and agreed that
any such breach or threatened breach will cause irreparable injury to the
Company and that money damages will not provide an adequate remedy to the
Company; and
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(b) In the event of an actual breach adjudicated by a court of
competent jurisdiction, the right to recover all actual damages to the Company
arising from such breach, including, but not limited to, any proven profits or
other benefits derived or received by Employee as a result of the breach.
10. Each of the rights and remedies enumerated above shall be
independent of the other, and shall be severally enforceable, and all of such
rights and remedies shall be in addition to, and not in lieu of, any other
rights and remedies available to the Company at law or in equity. If any of the
covenants contained in paragraphs 1 through 7, or any part thereof, is hereafter
construed to be invalid or unenforceable, the same shall not affect the
remainder of the covenant or covenants, which shall be given full effect,
without regard to the invalid portions. If any of the covenants contained in
paragraphs 1 through 7, or any part thereof, is held to be unenforceable because
of the duration of such provision or the scope of the subject matter thereof or
the area covered thereby, the parties agree that the court making such
determination shall have the power to reduce the duration, scope and/or area of
such provision and, in its reduced form, said provision shall then be
enforceable.
11. The Company shall be the sole owner of all the products and
proceeds of Employee's services hereunder, including, but not limited to, all
materials, ideas, concepts, formats, suggestions, developments, arrangements,
packages, computer programs and other intellectual properties that Employee may
acquire, obtain, develop or create in connection with Employee's employment by
the Company, free and clear of any claims by Employee (or anyone claiming under
Employee) of any kind or character whatsoever. Employee shall, at the request of
the Company, execute such assignments, certificates or other instruments as the
Company may from time to time deem necessary or desirable to evidence,
establish, maintain, perfect, protect, enforce or defend its right, title and
interest in or to any such properties or any other such works for hire. Employee
has been notified and understands that the provisions of Section 11 of this
Agreement do not apply to any Invention that qualifies fully under the
provisions of Section 2870 of the California Labor Code, which states 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 actually or
demonstrably anticipated research or development of the employer, or
(2) Result from any work performed by the employee for the
employer.
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(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 California Labor Code
Section 2870(a), the provision is against the public policy of this
state and is unenforceable.
12. Employee hereby represents and warrants that his employment by the
Company will not cause Employee to be in violation of any non-competition or
restrictive covenant which would, if enforceable, restrict his ability to
continue as an employee of the Company and to perform his duties to the Company.
13. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania without reference
to principles of conflicts of law.
14. This Agreement sets forth the entire agreement and understanding of
the parties relating to the subject matter hereof, and supersedes all prior
agreements, arrangements and understandings, written or oral, relating to the
subject matter hereof.
15. The Company may assign its rights, together with its obligations,
hereunder in connection with any sale, transfer or other disposition of all or
substantially all of its business or assets.
16. This Agreement may be amended, modified, superseded, cancelled,
renewed or extended and the terms or covenants hereof may be waived, only by a
written instrument executed by both of the parties hereto, or in the case of a
waiver, by the party waiving compliance. The failure of either party at any time
or times to require performance of any provision hereof shall in no manner
affect the right at a later time to enforce the same. No waiver by either party
of the breach of any term or covenant contained in this Agreement, whether by
conduct or otherwise, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such breach, or a waiver of
the breach of any other term or covenant contained in this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
NEOWARE SYSTEMS, INC.
(a Delaware corporation)
By: /S/ Keith D. Schneck
Chief Financial Officer
EMPLOYEE:
/S/ Wei Ching
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