1
Exhibit 10.48
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made this 4th day of
February, 1998 (the "Effective Date") by and between QuadraMed Corporation, a
Delaware corporation ("QuadraMed" or the "Employer"), and Ruthann Russo, an
individual resident of Pennsylvania (the "Employee").
WHEREAS, concurrently with the execution and delivery of this Agreement,
the Employer is acquiring from the Employee and the other stockholders of Cabot
Marsh Corporation (the "Company") all of the issued shares of stock of the
Company pursuant to that certain Acquisition Agreement and Plan of Merger dated
February 2, 1998 by and among QuadraMed, CMC Acquisition Corporation, the
Company, the Employee and certain of the other stockholders of the Company (the
"Merger Agreement").
WHEREAS, the Employer desires the Employee's employment with the Employer,
and the Employee wishes to accept such employment, upon the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, the parties, intending to be legally bound, agree as
follows:
1. Definitions. For the purposes of this Agreement, the following terms
have the meanings specified or referred to in this Section 1.
1.1. "Agreement" shall mean this Employment Agreement, including
Exhibit "A" attached hereto and incorporated herein by this reference, as
amended from time to time.
1.2. "Basic Compensation" shall mean Salary and Benefits.
1.3. "Benefits" shall be as defined in Section 3.1(c).
1.4. "Board of Directors" shall mean the board of directors of the
Employer.
1.5. "Confidential Information" shall mean any and all trade secrets
concerning the business and affairs of the Employer, product specifications,
data, know-how, formulae, compositions, processes, designs, sketches,
photographs, graphs, drawings, samples, inventions and ideas, past, current and
planned research and development, current and planned manufacturing or
distribution methods and processes, customer lists, current and anticipated
customer requirements, price lists, market studies, business plans, computer
software and programs (including object code and source code), computer software
and database technologies, systems, structures and architectures (and related
formulae, compositions, processes, improvements, devices, know-how, inventions,
discoveries, concepts, ideas, designs, methods and information, and any other
information, however documented, that is a trade secret within the meaning of
applicable law; information concerning the business and affairs of the Employer
(which includes historical financial statements, financial projections and
budgets, historical and projected sales, capital spending
2
budgets and plans, the names and backgrounds of key personnel and personnel
training and techniques and materials), however documented; and notes, analysis,
compilations, studies, summaries and other material prepared by or for the
Employer containing or based, in whole or in part, on any information included
in the foregoing.
1.6. "disability" shall be as defined in Section 6.2.
1.7. "Effective Date" shall mean the date stated in the first
paragraph of the Agreement.
1.8. "Employee Invention" shall mean any idea, invention, technique,
modification, process or improvement (whether patentable or not), any industrial
design (whether registerable or not), any mask work, however fixed or encoded,
that is suitable to be fixed, embedded or programmed in a semiconductor product
(whether recordable or not), and any work of authorship (whether or not
copyright protection may be obtained for it) created, conceived or developed by
the Employee, either solely or in conjunction with others, during the Employment
Period, or a period that includes a portion of the Employment Period, that
relates in any way to, or is useful in any manner in, the business then being
conducted or proposed to be conducted by the Employer, and any such item created
by the Employee, either solely or in conjunction with others, following
termination of the Employee's employment with the Employer, that is based upon
or uses Confidential Information.
1.9. "Employment Period" shall mean the term of the Employee's
employment under this Agreement.
1.10. "Fiscal Year" shall mean the Employer's fiscal year, as it
exists on the Effective Date or as changed from time to time.
1.11. "for cause" shall be as defined in Section 6.3.
1.12. "person" shall mean any individual, corporation (including any
non-profit corporation), general or limited partnership, limited liability
company, joint venture, estate, trust, association, organization or governmental
body.
1.13. "Proprietary Items" shall be as defined in Section 7.2(a)(iv).
1.14. "Salary" shall be as defined in Section 3.1(a).
2. Employment Terms and Duties.
2.1. Employment. The Employer hereby employs the Employee, and the
Employee hereby accepts employment by the Employer, upon the terms and
conditions set forth in this Agreement.
2.2. Term. Subject to the provisions of Section 6, the term of the
Employee's employment under this Agreement will be two (2) years, beginning on
the
3
Effective Date and ending on the second (2nd) anniversary of the Effective
Date.
2.3. Duties. The Employee will have such duties as are assigned or
delegated to the Employee by the Board of Directors or the Chairman, Chief
Executive Officer, President or Chief Operating Officer of the Employer, and
will initially serve as the President of the newly-formed Compliance and
Education Division of the Employer. Subject to review and change by the Board of
Directors or the Chairman, Chief Executive Officer, President or Chief Operating
Officer of the Employer, the Employee shall initially have primary management
responsibility for such division, and the following employees of the Employer
shall report to the Employee: all existing employees of (i) the Company, (ii)
the business of QuadraMed formerly known as Healthcare Cash Management Seminars,
Inc., (iii) the existing QuanTIM FACTS operations of QuadraMed, (iv) the
business of QuadraMed formerly known as Healthcare Research Advisors, Inc. and
(v) the business known as Healthcare Management Advisors, Inc. (if and when such
acquisition is consummated by QuadraMed). The Employee will devote his or her
entire business time, attention, skill and energy exclusively to the business of
the Employer, will use his or her best efforts to promote the success of the
Employer's business and will cooperate fully with the Board of Directors and the
Employer's executive officers in the advancement of the best interests of the
Employer. Nothing in this Section 2.3, however, will prevent the Employee from
engaging in additional activities in connection with personal investments and
community affairs that are not inconsistent with the Employee's duties under
this Agreement.
3. Compensation.
3.1. Basic Compensation.
(a) Salary. The Employee will be paid an annual salary of One
Hundred Seventy-Five Thousand Dollars ($175,000), subject to adjustment as
provided below (the "Salary"), which will be payable in equal periodic
installments according to the Employer's customary payroll practices, but no
less frequently than monthly. The Salary will be reviewed by the Board of
Directors or the Chief Executive Officer, President or Chief Operating Officer
of the Employer not less frequently than annually, and may be adjusted upward in
the sole discretion of the Board of Directors or the Chief Executive Officer,
President or Chief Operating Officer of the Employer.
(b) Withholdings. The Employer will deduct and withhold, from
the Salary payable to the Employee under Section 3.1(a) above, any and all
applicable federal, state and local income and employment withholding taxes and
any other amounts required to be deducted or withheld by the Employer under
applicable statute or regulation.
(c) Benefits. The Employee will, during the Employment Period,
be permitted to participate in such pension, stock option, profit sharing,
bonus, life insurance, hospitalization, major medical and other employee benefit
plans of the Employer that may be in effect from time to time, to the extent the
Employee is eligible under the terms of those plans (collectively, the
"Benefits"). The Employee shall also be reimbursed in accordance
4
with the Employer's policies for a maximum of $300 per month in cellular phone
charges attributable to the Employee's duties hereunder. The Employee shall
assume personal responsibility for payment of the existing automobile loan or
lease on the Employee's current automobile.
4. Facilities and Expenses. The Employer will furnish the Employee office
space, equipment, supplies and such other facilities and personnel as the
Employer deems necessary or appropriate for the performance of the Employee's
duties under this Agreement. The Employer will pay the Employee's dues in such
professional societies and organizations as the Chairman of the Board, Chief
Executive Officer, President or Chief Operating Officer of the Employer deems
appropriate, and will pay on behalf of the Employee (or reimburse the Employee
for) reasonable expenses incurred by the Employee at the request of, or on
behalf of, the Employer in the performance of the Employee's duties pursuant to
this Agreement, and in accordance with the Employer's employment policies. The
Employee must file expense reports with respect to such expenses in accordance
with the Employer's policies.
5. Vacations and Holidays. The Employee will be entitled to four (4) weeks
paid vacation each Fiscal Year in accordance with the vacation policies of the
Employer in effect for its officers from time to time. Vacation must be taken by
the Employee at such time or times as approved by the Chairman of the Board,
Chief Executive Officer, President or Chief Operating Officer of the Employer.
The Employee will also be entitled to the paid holidays set forth in the
Employer's policies.
6. Termination.
6.1. Events of Termination. The Employment Period, the Employee's
Basic Compensation and any and all other rights of the Employee under this
Agreement or otherwise as an employee of the Employer will terminate (except as
otherwise provided in this Section 6): (i) upon the death of the Employee; (ii)
upon the disability of the Employee (as defined in Section 6.2) immediately upon
notice from either party to the other; (iii) upon termination by the Employer or
the Employee, without cause or for cause (as defined in Section 6.3),
immediately upon notice from the Employer or the Employee, as the case may be,
or at such later time as such notice may specify.
6.2. Definition of Disability. For purposes of Section 6.1, the
Employee will be deemed to have a "disability" if, he is disabled as defined in
the Employer's disability insurance policy applicable to the Employee.
6.3. Definition of "for cause". For purposes of Section 6.1, the
phrase "for cause" means: (i) the Employee's material breach of Section 7 of
this Agreement; (ii) a material knowing breach of or knowing misrepresentation
with respect to any obligation, representation, warranty, covenant or agreement
by the Employee under the Merger Agreement; (iii) the Employee's negligence in
attention to material affairs of the Employer or failure to adhere to any
written Employer policy if the Employee has been given a reasonable opportunity
to comply with such policy or cure his or her negligence or failure to comply;
5
(iv) the appropriation (or attempted appropriation) of a material business
opportunity of the Employer, including attempting to secure or securing any
personal profit in connection with any transaction entered into on behalf of the
Employer; (v) the misappropriation (or attempted misappropriation) of any of the
Employer's funds or property; (vi) the Employee's commission of any crime or an
act of dishonesty, fraud or moral turpitude or knowingly making false or
misleading statements in connection with his or her employment; or (vii) the
conviction of, the indictment for (or its procedural equivalent) or the entering
of a guilty plea or plea of no contest with respect to, a felony, the equivalent
thereof, or any other crime with respect to which imprisonment is a possible
punishment.
6.4. Termination Pay. Effective upon the termination of this
Agreement, the Employer will be obligated to pay the Employee (or, in the event
of his or her death, his or her designated beneficiary as defined below) only
such compensation as is provided in this Section 6.4, and in lieu of all other
amounts and in settlement and complete release of all claims the Employee may
have against the Employer. For purposes of this Section 6.4, the Employee's
designated beneficiary will be such individual beneficiary or trust, located at
such address, as the Employee may designate by notice to the Employer from time
to time or, if the Employee fails to give notice to the Employer of such a
beneficiary, the Employee's estate. Notwithstanding the preceding sentence, the
Employer will have no duty, in any circumstances, to attempt to open an estate
on behalf of the Employee, to determine whether any beneficiary designated by
the Employee is alive or to ascertain the address of any such beneficiary, to
determine the existence of any trust, to determine whether any person or entity
purporting to act as the Employee's personal representative (or the trustee of a
trust established by the Employee) is duly authorized to act in that capacity,
or to locate or attempt to locate any beneficiary, personal representative or
trustee. All payments pursuant to this Section 6.4(a) will be payable in equal
periodic installments according to the Employer's customary payroll practices,
but no less frequently than monthly.
(a) Termination by the Employer Without Cause. If the Employer
terminates this Agreement without cause, the Employer will pay the Employee the
Employee's Salary for the remainder, if any, of the calendar month in which such
termination is effective and for twelve (12) consecutive calendar months
thereafter. Notwithstanding the preceding sentence, if the Employee obtains
other employment prior to the end of the twelve (12) months following the month
in which the termination is effective, he must promptly give notice thereof to
the Employer, and the Salary payments under this Agreement for any period after
the Employee obtains other employment will be reduced by the amount of the cash
compensation received and to be received by the Employee from the Employee's
other employment for services performed during such period. For purposes of this
Section 6.4(a), termination by the Employer without cause shall include a
termination of the Employee's employment at his or her initiative following the
occurrence, without the Employee's prior written consent, of one or more of the
following events: (i) a reduction in the Employee's Salary; (ii) a material
diminution in the Employee's duties such that the Employee is not a
management-level employee; or (iii) a relocation of the Employee's principal
place of employment by more than forty-five (45) miles.
6
(b) Termination by the Employer for Cause. If the Employer
terminates this Agreement for cause, the Employee will be entitled to receive
his or her Salary only through the date such termination is effective.
(c) Termination upon Disability. If this Agreement is
terminated by either party as a result of the Employee's disability, as
determined under Section 6.2, the Employer will pay the Employee his or her
Salary for the lesser of (i) six (6) consecutive calendar months or (ii) the
period until disability insurance benefits commence under the disability
insurance coverage furnished by the Employer to the Employee.
(d) Termination upon Death. If this Agreement is terminated
because of the Employee's death, the Employee will be entitled to receive his or
her Salary through the end of the calendar month in which his or her death
occurs.
(e) Benefits. The Employee's accrual of, or participation in
plans providing for, the Benefits will cease at the effective date of the
termination of this Agreement, and the Employee will be entitled to accrued
Benefits pursuant to such plans only as provided in such plans.
7. Non-Disclosure Covenant; Employee Inventions.
7.1. Acknowledgments by the Employee. The Employee acknowledges
that: (i) during the Employment Period and as a part of his or her employment,
the Employee will be afforded access to Confidential Information; (ii) public
disclosure of such Confidential Information could have an adverse effect on the
Employer and its business; (iii) because the Employee possesses substantial
technical expertise and skill with respect to the Employer's business, the
Employer desires to obtain exclusive ownership of each Employee Invention, and
the Employer will be at a substantial competitive disadvantage if it fails to
acquire exclusive ownership of each Employee Invention; (iv) the Employer has
required that the Employee make the covenants in this Section 7 as a condition
to its acquisition of the Employee's stock in the Company; and (v) the
provisions of this Section 7 are reasonable and necessary to prevent the
improper use or disclosure of Confidential Information and to provide the
Employer with exclusive ownership of all Employee Inventions.
7.2. Agreements of the Employee. In consideration of the
compensation and benefits to be paid or provided to the Employee by the Employer
under this Agreement, the Employee covenants as follows:
(a) Confidentiality. During and following the Employment
Period, the Employee will hold in confidence the Confidential Information and
will not disclose it to any person except with the specific prior written
consent of the Employer or except as otherwise expressly permitted by the terms
of this Agreement. Any trade secrets of the Employer will be entitled to all of
the protections and benefits under any applicable law. If any information that
the Employer deems to be a trade secret is found by a court of competent
jurisdiction not to be a trade secret for purposes of this Agreement, such
information will,
7
nevertheless, be considered Confidential Information for purposes of this
Agreement. The Employee hereby waives any requirement that the Employer submit
proof of the economic value of any trade secret or post a bond or other
security. The term "Confidential Information" shall not include information
which is (i) generally or readily obtainable by the public or the trade, (ii)
publicly known or becomes known, through no fault or activity of Employee or
(iii) required to be disclosed by Employee or any relative of Employee pursuant
to deposition, interrogatory, request for documents, order, subpoena, civil
investigative demand or similar legal compulsion; provided, however, that prompt
written notice of such requirement shall be provided to Employer so that it may
seek a protective order or other appropriate remedy and/or may waive compliance
with this Section 7.2(a); and provided, further, that if such protective order
or other remedy is not obtained, and whether or not such waiver is given, only
such portion of the Confidential Information which Employee is advised in
writing by his or her counsel is legally required to be disclosed shall be
disclosed and reasonable effort shall be made to obtain assurances that
confidential treatment will be accorded such Confidential Information. The
Employee will not remove from the Employer's premises (except to the extent such
removal is for purposes of the performance of the Employee's duties at home or
while traveling, or except as otherwise specifically authorized by the Employer)
any document, record, notebook, plan, model, component, device or computer
software or code, whether embodied in a disk or in any other form (collectively,
the "Proprietary Items"). The Employee recognizes that, as between the Employer
and the Employee, all of the Proprietary Items, whether or not developed by the
Employee, are the exclusive property of the Employer. Upon termination of this
Agreement by either party, or upon the request of the Employer during the
Employment Period, the Employee will return to the Employer all of the
Proprietary Items in the Employee's possession or subject to the Employee's
control, and the Employee shall not retain any copies, abstracts, sketches or
other physical embodiment of any of the Proprietary Items.
(b) Employee Inventions. Each Employee Invention will belong
exclusively to the Employer. The Employee acknowledges that all Employee
Inventions are works made for hire and the property of the Employer, including
any copyrights, patents or other intellectual property rights pertaining
thereto. If it is determined that any such works are not works made for hire,
the Employee hereby assigns to the Employer all of the Employee's
right, title and interest, including all rights of copyright, patent and other
intellectual property rights, to or in such Employee Inventions. The Employee
covenants that he will promptly: (i) disclose to the Employer in writing any
Employee Invention; (ii)assign to the Employer or to a party designated by the
Employer, at the Employer's request and without additional compensation, all of
the Employee's right to the Employee Invention for the United States and all
foreign jurisdictions; (iii) execute and deliver to the Employer such
applications, assignments and other documents as the Employer may request in
order to apply for and obtain patents or other registrations with respect to any
Employee Invention in the United States and any foreign jurisdictions; (iv) sign
all other papers necessary to carry out the above obligations; and (v) give
testimony and render any other assistance in support of the Employer's rights to
any Employee Invention. No assignment of this Agreement shall extend
8
to Employee Inventions, the assignment of which is prohibited by California
Labor Code Section 2870, a copy of which is attached hereto as Exhibit "A" and
incorporated herein by this reference.
7.3. Disputes or Controversies. The Employee recognizes that should
a dispute or controversy arising from or relating to this Agreement be submitted
for adjudication to any court, arbitration panel or other third party, the
preservation of the secrecy of Confidential Information may be jeopardized. All
pleadings, documents, testimony and records relating to any such adjudication
will be maintained in secrecy and will be available for inspection by the
Employer, the Employee and their respective attorneys and experts, who will
agree, in advance and in writing, to receive and maintain all such information
in secrecy, except as may be limited by them in writing.
8. General Provisions.
8.1. Injunctive Relief and Additional Remedy. The Employee
acknowledges that the injury that would be suffered by the Employer as a result
of a breach of the provisions of this Agreement (including any provision of
Section 7) would be irreparable and that an award of monetary damages to the
Employer for such a breach would be an inadequate remedy. Consequently, the
Employer will have the right, in addition to any other rights it may have, to
obtain injunctive relief to restrain any breach or threatened breach or
otherwise to specifically enforce any provision of this Agreement, and the
Employer will not be obligated to post bond or other security in seeking such
relief. Without limiting the Employer's rights under this Section 8 or any other
remedies of the Employer, if the Employee breaches any of the provisions of
Section 7, the Employer will have the right to cease making any payments
otherwise due to the Employee under this Agreement.
8.2. Covenants of Section 7 are Essential and Independent Covenants.
The covenants by the Employee in Section 7 are essential elements of this
Agreement, and without the Employee's agreement to comply with such covenants,
the Employer would not have acquired the Employee's stock under the Merger
Agreement and the Employer would not have entered into this Agreement or
employed or continued the employment of the Employee. The Employer and the
Employee have independently consulted their respective counsel and have been
advised in all respects concerning the reasonableness and propriety of such
covenants, with specific regard to the nature of the business conducted by the
Employer. The Employee's covenants in Section 7 are independent covenants and
the existence of any claim by the Employee against the Employer under this
Agreement or otherwise will not excuse the Employee's breach of any covenant in
Section 7. If the Employee's employment hereunder expires or is terminated, this
Agreement will continue in full force and effect as is necessary or appropriate
to enforce the covenants and agreements of the Employee in Section 7.
8.3. Representations and Warranties by the Employee. The Employee
represents and warrants to the Employer that the execution and delivery by the
Employee of this Agreement do not, and the performance by the Employee of the
Employee's obligations hereunder will not, with or without the giving of notice
or the passage of time, or both:
9
(a) violate any judgment, writ, injunction or order of any court, arbitrator or
governmental agency applicable to the Employee; or (b) conflict with, result in
the breach of any provisions of or the termination of or constitute a default
under, any agreement to which the Employee is a party or by which the Employee
is or may be bound.
8.4. Waiver. The rights and remedies of the parties to this
Agreement are cumulative and not alternative. Neither the failure nor any delay
by either party in exercising any right, power or privilege under this Agreement
will operate as a waiver of such right, power or privilege, and no single or
partial exercise of any such right, power or privilege will preclude any other
or further exercise of such right, power or privilege or the exercise of any
other right, power or privilege. To the maximum extent permitted by applicable
law, (a) no claim or right arising out of this Agreement can be discharged by
one party, in whole or in part, by a waiver or renunciation of the claim or
right unless in writing signed by the other party, (b) no waiver that may be
given by a party will be applicable except in the specific instance for which it
is given and (c) no notice to or demand on one party will be deemed to be a
waiver of any obligation of such party or of the right of the party giving such
notice or demand to take further action without notice or demand as provided in
this Agreement.
8.5. Binding Effect; Delegation of Duties Prohibited. This Agreement
shall inure to the benefit of, and shall be binding upon, the parties hereto and
their respective successors, assigns, heirs and legal representatives, including
any entity with which the Employer may merge or consolidate or to which all or
substantially all of its assets may be transferred. The duties and covenants of
the Employee under this Agreement, being personal, may not be delegated.
8.6. Notices. All notices, consents, waivers and other
communications under this Agreement must be in writing and will be deemed to
have been duly given when (a) delivered by hand (with written confirmation of
receipt), (b) sent by facsimile (with written confirmation of receipt), provided
that a copy is mailed by registered mail, return receipt requested or (c) when
received by the addressee, if sent by a nationally recognized overnight
delivery service (receipt requested), in each case to the appropriate addresses
and facsimile numbers set forth in the Merger Agreement (or to such other
addresses and facsimile numbers as a party may designate by notice to the other
parties).
8.7. Entire Agreement; Amendments. This Agreement, the Merger
Agreement and the documents executed in connection with the Merger Agreement
contain the entire agreement between the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings, oral or
written, between the parties hereto with respect to the subject matter hereof.
This Agreement may not be amended orally, but only by an agreement in writing
signed by the parties hereto.
8.8. Governing Law. This Agreement will be governed by the laws of
the State of Delaware without regard to conflicts of laws principles.
8.9. Jurisdiction. The parties hereby agree that jurisdiction and
venue for
10
any controversy arising out of the terms of this Agreement or the breach thereof
shall be appropriate in federal or state court in the states of California,
Pennsylvania or Delaware.
8.10. Section Headings, Construction. The headings of sections in
this Agreement are provided for convenience only and will not affect its
construction or interpretation. All references to "Section" or "Sections" refer
to the corresponding section or sections of this Agreement unless otherwise
specified. All words used in this Agreement will be construed to be of such
gender or number as the circumstances require. Unless otherwise expressly
provided, the word "including" does not limit the preceding words or terms.
8.11. Severability. If any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect. Any provision
of this Agreement held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or unenforceable.
8.12. Counterparts; Facsimile. This Agreement may be executed in one
or more counterparts, all of which when fully-executed and delivered by all
parties hereto and taken together shall constitute a single agreement, binding
against each of the parties. To the maximum extent permitted by law or by any
applicable governmental authority, any document may be signed and transmitted by
facsimile with the same validity as if it were an ink-signed document. Each
signatory below represents and warrants by his or her signature that he is duly
authorized (on behalf of the respective entity for which such signatory has
acted) to execute and deliver this instrument and any other document related to
this transaction, thereby fully binding each such respective entity.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
11
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date above first written above.
QUADRAMED CORPORATION
By:/s/James D. Durham
Name: James D. Durham
Title: Chairman of the Board, President and
Chief Executive Officer
/s/ Ruthann Russo
[SIGNATURE PAGE TO EMPLOYMENT AGREEMENT]
12
EXHIBIT "A"
CALIFORNIA LABOR CODE SECTION 2870
Section 2870. Application of provision providing that employee will assign
or offer to assign rights in invention to employer.
(a) Any provision in an employment agreement which provides that an
employee will assign, or offer to assign, any of his or her rights in an
invention to his or her employer will 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 his or her
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.