AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
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THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is made
and entered into as of the 6th day of December, 1999 by and between CONCURRENT
COMPUTER CORPORATION, a Delaware corporation ("Concurrent" or the "Company"),
and DANIEL S. DUNLEAVY (the "Employee").
WHEREAS, the Company and the Employee have entered into that certain
Employment Agreement dated as of June 27, 1996 (the "Original Agreement");
WHEREAS, the Company and the Employee desire to amend and restate the
Original Agreement to more accurately reflect the current duties and
responsibilities performed by Employee and payments to be made to Employee upon
termination of employment;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. EMPLOYMENT. The Company hereby employs the Employee and the
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Employee hereby accepts employment with the Company for the term set forth in
Paragraph 2 below, in the position and with the duties and responsibilities set
forth Paragraph 3 below, and upon other terms and conditions hereinafter stated.
2. TERM. The term of employment hereunder shall commence on the
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date hereof and shall continue until otherwise terminated by either party at any
time in accordance with the terms hereof.
3. POSITION; DUTIES; RESPONSIBILITIES.
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a. It is intended that at all times during the term of employment
hereunder, the Employee shall serve in such senior executive position as
President, Real-Time Division as shall be assigned to the Employee by the Chief
Executive Officer of the Company (the "Chief Executive Officer") or by the
Company's Board of Directors (the "Board of Directors") from time to time. The
Employee agrees to perform such senior executive and managerial services
customary to such position as are necessary to the operations of the Company and
as may be assigned to him from time to time by the Chief Executive Officer or
the Board of Directors.
b. Throughout the term of employment hereunder, the Employee shall
devote his full time and undivided attention during normal business hours to the
business and affairs of the Company, as appropriate to his responsibilities and
duties hereunder, except for reasonable vacations and illness or other
disability, but nothing in the Agreement shall preclude the Employee from
devoting reasonable periods required for serving as a director or member of any
advisory committee of not more than two (at any time) organizations involving no
conflict of interest with the interests of the Company (subject to approval by
the Board of Directors, which approval shall not be unreasonably withheld), from
engaging in charitable and community activities, and from managing his personal
investments, provided such activities do not materially interfere with the
performance of his duties and responsibilities under the Agreement.
4. COMPENSATION
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a. Salary: For services rendered by the Employee during the term
of employment hereunder, the Employee shall be paid a salary, payable in equal
biweekly installments (or, if different, payable in accordance with the then
existing applicable payroll policy of the Company, but in no event less
frequently than equal monthly installments) at an annualized rate of no less
than $220,000, such salary to be reviewed for increase annually with such
increases as shall be awarded in the discretion of the Board of Directors taking
into account such factors as corporate and individual performance and general
business conditions, including changes in the Miami-Fort Lauderdale metropolitan
area cost of living index.
b. Annual Bonus: During the term of employment hereunder, the
Employee will be provided an annual bonus opportunity in a target amount not
less than 40% of the then current salary, (hereafter, the "Executive Bonus
Plan") the actual amount to be paid depending upon the degree of achievement
of various objectives. The objectives for each year and other terms and
conditions of the bonus opportunity shall be established by the Board of
Directors or a committee thereof and shall be reasonably consistent with the
business plan of the Company for such year established in advance.
c. Employee Benefit Plans: During the term of employment
hereunder, the Employee will be eligible to participate in all employee benefit
programs of the Company now or hereafter made available to senior executives, in
accordance with the provisions thereof as in effect from time to time; for
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example, to the extent made available to senior executives of the Company from
time to time, any incentive compensation plan, profit sharing and savings or
other retirement plans, stock option and purchase plans, group life insurance,
hospitalization, medical and dental coverage, disability plans, annual physical
examination, car phone, holidays and accrued vacations. In any event, the
Employee shall be entitled to vacation days at the rate of four weeks per year
or such greater amount as may be provided by Company policies in effect from
time to time.
d. Stock and Stock Options: On June 27, 1996 the Board of
Directors granted to the Employee a stock option to purchase an aggregate of
320,000 shares with an exercise price equal to $2.10, pursuant to resolutions
duly adopted. The employee was also granted an additional stock option to
purchase an aggregate of 80,000 shares with an exercise price equal to $2.10
pursuant to resolutions duly adopted and the terms of the Long-Term Incentive
Compensation Plan for the 3-year cycle ending June 30, 1999.
e. Business Expense Reimbursements: During the term of employment
hereunder, the Employee will be entitled to receive reimbursement by the Company
for all reasonable out-of-pocket expenses incurred by him (in accordance with
the policies and procedures established by the Company for its senior level
executives), in connection with his performing services hereunder.
5. GROUNDS FOR TERMINATION. The Board of Directors of the Company may
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terminate this Agreement for Cause. As used herein, "Cause" shall mean any of
the following: (a) the Employee has committed a willful serious act against the
Company intended to enrich himself at the expense of the Company, such as
embezzlement, or has been convicted of a felony involving moral turpitude; or
(b) Employee has (i) willfully and grossly neglected his duties hereunder, or
(ii) intentionally failed to observe specific directives or policies of the
Board of Directors, which directives or policies were consistent with his
positions, duties and responsibilities hereunder, and which failure had, or
continuing failure will have, a material adverse effect on the Company. Prior
to any such termination, Employee shall be given written notice by the Board of
Directors that the Company intends to terminate his employment for Cause under
this Paragraph 5, which written notice shall specify the particular acts or
omissions on the basis of which the Company intends to so terminate Employee's
employment, and Employee (with his counsel, if he so chooses) shall be given the
opportunity, within 15 days of his receipt of such notice, to have a meeting
with the Board of Directors to discuss such acts or omissions and be given
reasonable time to remedy the situation. In the event of such termination, the
Employee shall be promptly furnished written specification of the basis therefor
in reasonable detail.
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6. TERMINATION BY EMPLOYEE. Employee may terminate this Agreement at
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any time with Good Reason. "Good Reason" shall exist if:
a. the Company demotes or otherwise elects or appoints the
Employee to lesser offices than set forth in Paragraph 3, or fails to elect or
appoint him to such positions;
b. the Company causes a material change in the nature or scope of
the authorities, powers, functions, duties or responsibilities attached to the
Employee's positions as described in Paragraph 3;
c. the Company decreases the Employee's compensation below the
levels provided for by the terms of Paragraph 4 (taking into account increases
made from time to time in accordance with Paragraph 4);
d. the Company materially reduces the Employee's benefits under
any employee benefit plan, program or arrangement of the Company (other than a
change that affects all employees similarly situated) from the level in effect
upon the Employee's commencement or participation;
e. the Company commits any other material breach of the provisions
of this Agreement (except those set forth in Paragraph 4.a.) and Employee
provides at least 15 days' prior written notice to at least two members of the
Company's Board of Directors of the existence of such breach and his intention
to terminate this Agreement (no such termination shall be effective if such
breach is cured during such period); or
f. the Company fails to comply with the provisions of Paragraph
4.a. for an uninterrupted 10 day period.
The Employee has the absolute right to resign and receive all benefits
detailed in Paragraph 8 of this Agreement provided he has continued in the
position as President of the Real-Time Division, or a more senior position,
until July 1, 2002.
7. PAYMENT AND OTHER PROVISIONS UPON TERMINATION FOR CAUSE OR EMPLOYEE
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CONVENIENCE. In the event Employee's employment with the Company (including its
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subsidiaries) is terminated by the Company for Cause as provided in Paragraph 5
prior to a Change of Control or more than three years after the occurrence of a
Change of Control (as defined in Paragraph 9.d. hereof), then the following
provisions shall apply. These same provisions shall apply if the Employee
terminates his employment other than in accordance with the provisions of
Paragraph 6 hereof.
a. Compensation: On or before Employee's last day of employment
with the Company, the Company shall pay in a lump sum to Employee such amount of
compensation due Employee for services rendered to the Company, as well as
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compensation for unused vacation time, as has accrued but remains unpaid. Any
and all other rights to compensation of any kind granted to Employee under this
Agreement shall terminate as of the date of termination, except as may be
otherwise required by statute.
b. Noncompetition Period: The provisions of Paragraph 13 shall
continue to apply with respect to Employee for a period of one year following
the date of termination.
8. PAYMENTS AND OTHER PROVISIONS UPON TERMINATION OTHER THAN FOR CAUSE
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OR FOR GOOD REASON. In the event Employee's employment with the Company
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(including its subsidiaries) is terminated by the Company for any reason other
than for Cause as provided in Paragraph 5 and other than as a consequence of
Employee's death, disability, or normal retirement under the Company's
retirement plans and practices prior to a Change of Control or more than three
years after the occurrence of a Change of Control (as defined in Paragraph 9.d.
hereof), then the following provisions shall apply. These same provisions shall
apply if Employee terminates his employment in accordance with the provisions of
Paragraph 6 hereof, prior to a Change of Control or more than three years after
the occurrence of a Change of Control (as defined in Paragraph 9.d. hereof).
a. Salary and Bonus Payments: On or before Employee's last day of
employment with the Company, the Company shall promptly pay in a lump sum to
Employee as compensation for services rendered to the Company a cash amount
equal to the amount of twice the Employee's base salary and target bonus under
the Executive Bonus Plan as in effect immediately prior to his date of
termination. At the election of the Company, the cash amount referred to in
this subparagraph 8.a. may be paid to Employee in periodic installments in
accordance with the normal salary payment procedures of the Company.
b. Benefit Plan Coverage: The Company shall maintain in full
force and effect for Employee and his dependents for two years after the date of
termination, all life, health, accident, and disability benefit plans and other
similar employee benefit plans, programs and arrangements in which Employee or
his dependents were entitled to participate immediately prior to the date of
termination, in such amounts as were in effect immediately prior to the date of
termination, provided that such continued participation is possible under the
general terms and provisions of such benefit plans, programs and arrangements.
In the event that participation in any benefit plan, program or arrangement
described above is barred, or any such benefit plan, program or arrangement is
discontinued or the benefits thereunder materially reduced, the Company shall
arrange to provide Employee and his dependents for two years after the date of
termination with benefits substantially similar to those that they were entitled
to receive under such benefit plans, programs and arrangements immediately prior
to the date of termination. If immediately prior to the date of termination the
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Company provided Employee with any club memberships, Employee will be entitled
to continue such memberships at his sole expense. Notwithstanding any time
period for continued benefits stated in this subparagraph 8.b., all benefits in
this subparagraph 8.b. will terminate on the date that Employee becomes an
employee of another employer and eligible to participate in the employee benefit
plans of such other employer. To the extent that Employee was required to
contribute amounts for the benefits described in this subparagraph 8.b. prior to
his termination, he shall continue to contribute such amounts for such time as
these benefits continue in effect after termination.
c. Savings and Other Plans: Except as otherwise more specifically
provided herein or under the terms of the respective plans relating to
termination of employment, Employee's active participation in any applicable
savings, retirement, profit sharing or supplemental employee retirement plans or
any deferred compensation or similar plan of the Company or any of its
subsidiaries shall continue only through the last day of his employment. All
other provisions, including any distribution and/or vested rights under such
plans, shall be governed by the terms of those respective plans.
d. Noncompetition Period: The provisions of Paragraph 13 shall
continue, beyond the time periods set forth in such paragraphs, to apply with
respect to employee for the shorter of (x) twenty-four (24) months following the
date of termination or (y) until such time as the Company has failed to comply
with the provisions of subparagraph 8.a. for an uninterrupted 10-day period and
such failure is not cured within 15 days after written notice of such failure is
delivered to at least two non-employee directors of the Company.
9. PAYMENT AND OTHER PROVISIONS AFTER CHANGE OF CONTROL. In the event
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Employee's employment with the Company is terminated within three years
following the occurrence of a Change of Control (other than as a consequence of
his death or disability, or of his normal retirement under the Company's
retirement plans and practices) either (i) by the Company for any reason other
than for Cause in accordance with Paragraph 5, or (ii) by Employee in accordance
with the provisions of Paragraph 6 hereof, then the following provisions shall
apply:
a. Salary and Bonus Payments: On or before Employee's last day of
employment with the Company, the Company shall promptly pay in a lump sum a cash
amount equal to the amount of twice the Employee's annual base salary as in
effect at the date of termination and the amount of the Employee's target bonus
under the Executive Bonus Plan for the fiscal year in which the date of
termination occurs, multiplied by two.
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b. Noncompetition Period: In the event of a termination under the
circumstances described in Paragraph 9, the provisions of Paragraph 13 shall be
without force and effect and shall not apply to Employee.
c. For purposes of this Agreement, the term "Change of Control"
shall mean:
i. The acquisition, other than from the Company, by any
individual, entity or group (within the meaning of Rule 13d-3 promulgated under
the Exchange Act or any successor provision)(any of the foregoing described in
this Paragraph 9.c.i hereafter a "Person") of 33% or more of either (a) the then
outstanding shares of Capital Stock of the Company (the "Outstanding Capital
Stock") or (b) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the "Voting Securities"), provided, however, that any acquisition by
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(x) the Company or any of its subsidiaries, or any employee benefit plan (or
related trust) sponsored or maintained by the Company or any of its subsidiaries
or (y) any Person that is eligible, pursuant to Rule 13d-1(b) under the Exchange
Act, to file a statement on Schedule 13G with respect to its beneficial
ownership of Voting Securities, whether or not such Person shall have filed a
statement on Schedule 13G, unless such Person shall have filed a statement on
Schedule 13D with respect to beneficial ownership of 33% or more of the Voting
Securities or (z) any corporation with respect to which, following such
acquisition, more than 60% of, respectively, the then outstanding shares of
common stock of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Capital Stock and Voting Securities
immediately prior to such acquisition in substantially the same proportion as
their ownership, immediately prior to such acquisition, of the Outstanding
Capital Stock and Voting Securities, as the case may be, shall not constitute a
Change of Control; or
ii. Individuals who, as of the Effective Date, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board, provided that any individual becoming a director
subsequent to the Effective Date whose election or nomination for election by
the Company's shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the election of the
Directors of the Company (as such terms are used in Rule 14a-11 of Regulation
14A, or any successor Paragraph, promulgated under the Exchange Act); or
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iii. Approval by the shareholders of the Company of a
reorganization, merger or consolidation (a "Business Combination"), in each
case, with respect to which all or substantially all holders of the Outstanding
Capital Stock and Voting Securities immediately prior to such Business
Combination do not, following such Business Combination, beneficially own,
directly or indirectly, more than 60% of, respectively, the then outstanding
shares of common stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from the Business Combination; or
iv. (a) a complete liquidation or dissolution of the Company
or (b) a sale or other disposition of all or substantially all of the assets of
the Company other than to a corporation with respect to which, following such
sale or disposition, more than 60% of, respectively, the then outstanding shares
of common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors is then owned
beneficially, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Capital Stock and Voting Securities immediately prior to such sale
or disposition in substantially the same proportion as their ownership of the
Outstanding Capital Stock and Voting Securities, as the case may be, immediately
prior to such sale or disposition.
10. TERMINATION BY REASON OF DEATH. If Employee shall die while
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employed by the Company both prior to termination of employment and during the
effective term of this Agreement, all Employee's rights under this Agreement
shall terminate with the payment of such amounts of annual base salary as have
accrued but remain unpaid and a prorated amount of targeted bonus under the
Executive Bonus Plan through the month in which his death occurs, plus six
additional months of the fixed salary and targeted bonus. All benefits under
Paragraphs 8.c. shall be extended to Employee's estate as described in such
paragraphs. In addition, Employee's eligible dependents shall receive continued
benefit plan coverage under Paragraph 8.b. for six months from the date of
Employee's death.
11. TERMINATION BY DISABILITY. Employee's employment hereunder may be
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terminated by the Company for disability. In such event, all Employee's rights
under this Agreement shall terminate with the payment of such amounts of annual
base salary as have accrued but remain unpaid as of the thirtieth (30th) day
after such notice is given except that all benefits under Paragraphs 8.b. and
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8.c. shall be extended to Employee as described in such paragraphs, provided,
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however, that, with respect to Paragraph 8.b., the period for continued benefit
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plan coverage shall be limited to six months from the date of termination. In
addition, the noncompetition provision of Paragraph 13 shall continue to apply
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for a period of six months from the date of termination for disability. For
purposes of this Agreement, "disability" is defined to mean that, as a result of
Employee's incapacity due to physical or mental illness:
a. Employee shall have been absent from his duties as an officer
of the Company on a substantially full-time basis for six (6) consecutive
months: and
b. Within thirty (30) days after the Company notifies Employee in
writing that it intends to replace him, Employee shall not have returned to the
performance of his duties as an officer for the Company on a full-time basis.
Such notice may be given by the Company at any time after Employee has been
absent for a total of four consecutive months.
12. RETIREMENT. Employee shall be entitled to participate in the
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Company's Retirement Savings Plan and any other retirement plan hereafter made
available to senior executive officers of the Company in accordance with the
provisions thereof as in effect from time to time.
13. NON-COMPETE AND CONFIDENTIAL INFORMATION. The Company and the
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Employee will enter into a non-compete and confidentiality agreement
substantially in the form attached as Exhibit A hereto.
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14. SUCCESSORS AND ASSIGNS
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a. Assignment by the Company: This Agreement shall be binding
upon and inure to the benefit of the Company or any corporation or other entity
to which the Company may transfer all or substantially all its assets and
business and to which the Company may assign this Agreement, in which case
"Company" as used herein shall mean such corporation or other entity.
b. Assignment by the Employee: The Employee may not assign this
Agreement or any part thereof without the prior written consent of the Company,
which consent may be withheld by the Company for any reason it deems
appropriate; provided, however, nothing herein shall preclude the Employee from
designating one or more beneficiaries to receive any amount that may be payable
following the occurrence of his legal incompetency or his death and shall not
preclude the legal representative of his estate from assigning any right
hereunder to the person or persons entitled thereto under his will or, in the
case of intestacy, to the person or persons entitled thereto under the laws of
intestacy applicable to his estate. The term "beneficiaries", as used in this
Agreement, shall mean a beneficiary or beneficiaries so designated to receive
any such amount or if no beneficiary has been so designated the legal
representative of the Employee (in the event of his incompetency) or the
Employee's estate.
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15. ARBITRATION. Any dispute or controversy under or in connection
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with this Agreement shall be settled exclusively by arbitration in Florida by
one arbitrator in accordance with the labor arbitration rules of the American
Arbitration Association then in effect. The arbitrator's award may include the
manner in which fees of counsel and other expenses in connection with the
dispute or controversy are to be borne. The arbitrator's authority and
jurisdiction is limited to interpreting and applying the express provisions of
this agreement and the arbitrator shall not have the authority to alter or add
to the provisions of this agreement. Judgment may be entered upon the
arbitrator's award in any court having jurisdiction.
16. GOVERNING LAW. This Agreement shall be deemed a contract made
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under, and for all purposes shall be construed in accordance with, the laws of
the State of Florida without reference to the principles of conflicts of law.
17. ENTIRE AGREEMENT. This Agreement contains all the understandings
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and representations between the parties hereto pertaining to the subject matter
hereof and supersedes all undertakings and agreements, whether oral or in
writing, if any there be, previously entered into by them with respect thereto.
18. AMENDMENT OR MODIFICATION; WAIVER. No provision in this Agreement
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may be amended or waived unless such amendment or waiver is agreed to in
writing, signed by the Employee and an officer of the Company thereunto duly
authorized. Except as otherwise specifically provided in the Agreement, no
waiver by any party hereto of any breach by another party hereto of any
condition or provision of the Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar provision or condition at
the same or any prior or subsequent time.
19. NOTICES. Any notice to be given hereunder shall be in writing and
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delivered personally or sent by certified mail, postage prepaid, return receipt
requested, addressed to the party concerned at the address indicated below or to
such other address as such party may subsequently give notice of hereunder in
writing:
TO THE COMPANY: CONCURRENT COMPUTER CORPORATION
2101 WEST CYPRESS CREEK ROAD
FORT LAUDERDALE, FL 33309
ATTN: CHIEF EXECUTIVE OFFICER
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TO THE EMPLOYEE: DANIEL S. DUNLEAVY
10328 N.W. 50TH COURT
CORAL SPRINGS, FL 33076
20. SEVERABILITY. In the event that any provision or portion of the
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Agreement shall be determined to be invalid or unenforceable for any reason, the
remaining provisions or portions of the Agreement shall be unaffected thereby
and shall remain in full force and effect to the fullest extent permitted by
law.
21. WITHHOLDING. Anything to the contrary notwithstanding, all
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payments required to be made by the Company hereunder to the Employee or his
estate or beneficiaries, shall be subject to withholding of such amounts
relating to taxes as the Company may reasonably determine it should withhold
pursuant to any applicable law or regulation. In lieu of withholding such
amounts, in whole or in part, the Company may, in its sole discretion, accept
other provision for payment of taxes as required by law, provided it is
satisfied that all requirements of law affecting its responsibilities to
withhold such taxes have been satisfied.
22. SURVIVORSHIP. The respective rights and obligations of the parties
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hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
23. REFERENCES. In the event of the Employee's death or judicial
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determination of his incompetence, reference in the Agreement to the Employee
shall be deemed, where appropriate, to refer to his legal representatives, or,
where appropriate, to his beneficiary or beneficiaries.
24. TITLES. Titles to the Paragraphs in this Agreement are intended
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solely for convenience and no provision of the Agreement is to be construed by
reference to the title of any Paragraph.
25. COUNTERPARTS. This Agreement may be executed in several
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counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
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26. CERTAIN LIMITATIONS ON REMEDIES. Paragraph 8.a. provides that
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certain payments and other benefits shall be received by Employee upon the
termination of Employee by the Company other than for Cause and states that
these same provisions shall apply if Employee terminates his employment in
accordance with the provisions of Paragraph 6 hereof. It is the intention of
this Agreement that if the Company terminates Employee other than for Cause (and
other than as a consequence of Employee's death, disability or normal
retirement) or if Employee terminates his employment in accordance with the
provisions of Paragraph 6 hereof, then the payments and other benefits set forth
in Paragraph 8.a. shall constitute the sole and exclusive remedies of Employee.
This Paragraph 26 shall have no effect upon the provisions of Paragraph 9 of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
CONCURRENT COMPUTER CORPORATION EMPLOYEE
/s/ E. Courtney Siegel /s/ Daniel S. Dunleavy
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E. Courtney Siegel Daniel S. Dunleavy
Chairman, President and Chief Executive Officer
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Exhibit A
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NON-COMPETE AND CONFIDENTIALITY AGREEMENT
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I, the undersigned, in consideration of and as a condition to my employment
by Concurrent Computer Corporation (the "Company), do hereby agree with the
Company as follows:
1. Competition. During the period of my employment by the Company, I
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will devote my full time and best efforts to the business of the Company and I
will not, directly or indirectly, alone or as a partner, officer, director,
employee or holder of more than 5% of the common stock of any other
organization, engage in any business activity which competes directly or
indirectly with the products or services being developed, manufactured or sold
by the Company. I also agree that, following any termination of such
employment, I will not, for any periods in respect of which I receive
compensation continuation payments from the Company and, if longer, but only
with respect to (b) below, for a period of one year after such termination, (a)
solicit or seek to obtain orders for any products or services similar to those
being developed, manufactured or sold by the Company from any person or
organization that is or was a customer of the Company or (b) recruit or
otherwise seek to induce employees of the Company to terminate their employment
or violate any agreement with the Company.
2. Confidential Information. Except as may be required in the
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performance of my duties with the Company, or as may be necessary to comply with
any order or decree issues by a court having competent jurisdiction, I will not
at any time, whether during or after termination of my employment with the
Company, reveal to any person or organization any of the trade secrets or
confidential information of the Company, and I will not use or attempt to use
any such information in any manner that may directly or indirectly injure or
cause loss to the Company. All information concerning the business of the
Company, including technical, financial and business information, shall be
considered confidential unless it is or becomes publicly available through no
fault of mine or unless it is disclosed by the Company to third parties without
similar restrictions.
Further, I agree that any and all documents, notes, or memoranda prepared
by me or others and containing trade secrets or confidential information shall
be and remain the sole and exclusive property of the Company, and that upon
termination of my employment I will immediately deliver all of such documents,
notes or memoranda, including all copies, to the Company at its main office.
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3. Inventions and Copyrights. If at any time or times during my
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employment (or within six months thereafter if based on confidential information
within the meaning of Paragraph 2 above), I make or discover, either alone or
with others, any invention, modification, development, improvement, process or
secret, whether or not patented or patentable (collectively, "inventions") in
the field of computer science or instrumentation, I will disclose in reasonable
detail the nature of such invention to the Company in writing, and if it relates
to the business of the Company or any of the products or services being
developed, manufactured or sold by the Company, such invention and the benefits
thereof shall immediately become the sole and absolute property of the Company
provided the Company notifies me in reasonable detail within 90 days after
receipt of my disclosure of such invention that it believes such invention
relates to the business of the Company or any of the products or services being
developed, manufactured or sold by the Company. I also agree to transfer such
inventions and benefits and rights resulting from such inventions to the Company
without compensation and will communicate without cost, delay or prior
publications all available information relating to the inventions to the
Company. At the Company's expense I will also, whether before or after
termination of my employment, sign all documents (including patent applications)
and do all acts and things that the Company may deem necessary or desirable to
effect the full assignment to the Company of my right and title to the
inventions or necessary to defend any opposition thereto. I also agree to
assign to the Company all copyrights and reproduction rights to any materials
prepared by me in connection with my employment.
4. Conflicting Agreements. I represent that I have attached to this
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Agreement a copy of any agreement which presently affects my ability to comply
with the terms of this Agreement, and that to the best of my knowledge my
employment with the Company will not conflict with any agreement to which I am
subject. I have returned all documents and materials belonging to any of my
former employers. I will not disclose to the Company or induce any of the
Company's employees to use confidential information of any of my former
employers.
5. Miscellaneous.
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(a) I hereby give the Company permission to use photographs of me,
during my employment, with or without using my name, for any purposes the
Company deems necessary or desirable.
(b) The Company shall have, in addition to any and all remedies of
law, the right to an injunction, specific performance and other equitable relief
as may be appropriate to prevent the violation of my obligations hereunder.
(c) I understand that this Agreement does not create an obligation
on the Company or any other person to continue my employment.
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(d) This Agreement shall be construed in accordance with the laws
of the State of Florida. I agree that each provision of this Agreement shall be
treated as a separate and independent clause, and the unenforceability of any
clause shall in no way impair the enforceability of any of the other clauses.
Moreover, if one or more of the provisions contained in this Agreement shall for
any reason be held to be extensively broad as to scope, activity, geographical
area or subject so as to be unenforceable at law, such provision or provisions
shall be construed by the appropriate judicial body by limiting and reducing it
or them so as to be enforceable to the extent compatible with applicable law as
it shall then appear.
(e) My obligations under this Agreement shall survive the
termination of my employment regardless of the manner of such termination for
the time periods set forth in paragraphs 1 and 3, above, with respect to the
matters covered therein and shall be binding upon my heirs, executors and
administrators.
(f) The term "Company" as used in this Agreement includes
Concurrent Computer Corporation and any of its subdivisions or affiliates. The
Company shall have the right to assign this Agreement to its successors and
assigns.
(g) The foregoing is the entire agreement between the Company and
me with regard to its subject matter, and may not be amended or supplemented
except by a written instrument signed by both the Company and me. The Paragraph
headings are inserted for convenience only, and are not intended to affect the
meaning of this Agreement.
/s/ Daniel S. Dunleavy
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Daniel S. Dunleavy
Date: December 6, 1999
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