(i) 除下文所述外, 第4条(a)(ii)部分高管同意在雇佣期间及高管与公司终止雇佣后三十六(36)个月内,对公司的所有成员或其各自关联公司的所有机密信息保密,不得直接或间接向任何人披露或以任何方式使用(除非是为了公司集团的利益),非披露期)高管在与公司或其任何关联公司合约期间获得、被披露或代表公司开发的所有机密信息。根据本协议,“机密信息”是指任何公司集团成员或其各自关联公司所有的书面或口头专有或非公开信息,包括与公司或其各自关联公司的企业或组织文件、合同、员工、独立承包商、客户、供应商、销售、促销、市场营销、销售项目、信用历史、还款历史、财务信息、基本报表、成本、运营、交易秘密、专有技术、研发、软件、数据库、发明、流程、科技、销售、定价、供应商、补偿、市场营销、广告、促销、产品线、联盟、财务数据、计划、前景及政府和监管活动有关的信息,无论是过去、现在还是计划中的。 “机密信息” does not include information that: (A) was, is now, or becomes generally available and known to the public or participants in the Company’s industry (but, in each case, not as a result of a breach of any duty of confidentiality by which the Executive or the disclosing party is bound); (B) is disclosed by the Company to any Person without a duty of confidentiality prior to disclosure to the Executive; or (C) is independently developed by the Executive without any reference to, or any use of, any Confidential Information and as provided in paragraph (c) below, not in connection with the Executive’s performance of legitimate business purposes on behalf of the Company with respect to the Executive’s employment with the Company. As to Confidential Information that constitutes a trade secret, the restrictions in this 第4(a)(i)部分 shall last for as long as the item qualifies as a trade secret under federal or state law. As to Confidential Information that does not constitute a trade secret, the restrictions in this Section 4(a)(i) shall last for so long as the Confidential Information remains confidential, unless applicable law requires a shorter duration and, if that is the case, the restrictions shall last during the Employment Period and for thirty-six (36) months after the Executive’s employment with the Company terminates.
(ii) Notwithstanding anything to the contrary set forth in Section 4(a)(i), the Executive may disclose Confidential Information to any Person (A) if, upon the opinion of the Executive’s counsel, such Confidential Information is required to be disclosed by applicable law, regulation or legal process, (B) in the ordinary course of the Company’s business as a proper part of the Executive’s employment in connection with communications with customers, vendors, suppliers, and other proper parties; 提供的,以便满足公司集团任何成员的正当目的,和/或(C)为了维护执行官在本协议或公司或其任何附属公司与执行官或执行官的任何附属公司之间的任何其他协议中的权利。如果执行官需要根据 第4(a)(ii)(A)条,执行官应及时通知公司,以便公司集团的适用成员可以寻求保护令或其他适当的救济和/或放弃合规 根据第4(a)条款,在进行分割或组合时,涉及的任何转让,公司应根据该通知执行并交付新的权证或权证,以交换相应的被分割或组合的权证或权证。所有在转让或交换中发行的权证应在初始行使日期进行,并且除了可根据其发行的权证股票数量而发行的部分,与本权证完全相同。 ,并且,如果未能获得此类保护令或其他救济,或适用的公司集团成员放弃对 第4(a)条,执行官应(1) 商业上合理地努力与适用的公司集团成员合作并协助,相关费用由适用的公司集团成员自行承担,(2) 仅披露法律上要求披露的机密信息部分,和(3) 尝试为该机密信息,相关费用由适用的公司集团成员自行承担,获取保密处理。
(c) 专有权. The Executive acknowledges and agrees that all right, title and interest in all developments, including inventions, patentable or otherwise, discoveries, improvements, patents, trade secrets, designs, reports, computer software, flow charts and diagrams, procedures, data, documentation, ideas and writings and applications thereof relating to the present or contemplated Business of any member of the Company Group that, alone or jointly with others, the Executive has already or may in the future during the Employment Period conceive, create, make, develop, reduce to practice or acquire (collectively, the “发展”) are works made for hire and shall remain the sole and exclusive property of the Company, and the Executive hereby assigns to the Company all of the Executive’s right, title and interest in and to all such Developments, and such Developments shall not be used by the Executive in any way adverse to any member of the Company Group’s interests. All items related to the Developments, including memoranda, notes, lists, charts, drawings, records, files, computer software, programs, source and programming narratives and other documentation (and all copies thereof) made or compiled by the Executive, or made available to the Executive, during the Employment Period concerning the Business or planned business of any member of the Company Group shall be the property of the Company, and shall be delivered to the Company promptly upon the earlier of the Company’s request or the termination of this Agreement. The Executive shall not deliver, reproduce or in any way allow such documents or Developments to be delivered or used by any third party without the prior written approval of the Board. The Executive will promptly disclose all Developments to the Company and, at the Company’s expense, perform all reasonable actions requested by the Company (whether during or after employment) to establish and confirm such ownership (including assignments, consents, powers of attorney and other instruments). Pursuant to California Labor Code 2870, the foregoing provisions regarding the assignment of Developments to the Company does not apply to a Development for which no equipment, supplies, facility or trade secret information of the Company was used and which was developed entirely on the Executive’s own time, unless (i) the invention relates at the time of conception or use (A) to the business of the Company or (B) to the Company’s actual or demonstrably anticipated research or development, or (ii) the invention results from or is the product of any work performed by the Executive for the Company in the scope of the Executive’s efforts on behalf of the Company.
(a) 无故解聘公司有权在雇佣期内随时无故终止执行人员的雇佣关系。如果公司在本协议下无故终止执行人员的雇佣,公司应支付给执行人员截至终止日期公司所欠的任何薪酬和福利,具体情况应按相关规定执行。 第三条 (统称为“)”,在适用的法定时效期满前持续有效。在适用的存续期限指定于本文件所规定的存续期限到期之前,未经在此之前规定通知提出有关任何陈述和保证的赔偿要求,将无效,且任何对赔偿的权利在该存续期限届满后已不可撤销地放弃。对于此类侵犯所提出的可赔偿损失的任何正确要求,应该在此处规定的存续期限内及时提出。应计的薪酬和福利)此外,依据执行官自愿签署的条款解除协议,该协议大致形式为 附件A 附于此,该条款解除协议仅在满足应用法律变更的必要范围内方可修改,若发生在生效日期后且在该条款解除协议签署之前,或经双方协商(“Release))必须在第六十(60)个;) 终止后,公司应支付给执行人员(i)终止时的基本工资,持续十二(12)个月(“解雇期限”),加上(ii)根据适用法律,支付或报销执行人员根据《税法》第49800亿条(如下所定义)和《1974年员工退休收入保障法》第601至608条(包括在内)所选定的所有医疗福利的保险费,ERISA这些费用将被视为执行人员在遣散期间的应税收入(统称为上述支付的 第5(a)(i)条 和 第5(a)(ii)节 将被称为“高度保密”。根据(A) 第5(a)(i)节 将在离职期间根据 本文中的其他与经销商有关的条款 和(B) 第5(a)(ii)条 应在执行官于离职期间按时支付或报销,具体根据 第3条,如适用。尽管本条款中有任何规定, 第5(a)条,离职付款 应根据公司的薪资政策支付给执行官,从终止后第六十一(61)天后的薪资发放日开始;日 前提是, that the Release is timely executed and delivered to the Company (and becomes effective) within such sixty (60) day period. All Severance Payments due from the date of termination of employment to the sixty first (61日) day following such termination shall be paid on the first payroll date of the Company following such period. If the Executive does not voluntarily execute the Release and the Release does not become effective within sixty (60) days of delivery of the Release by the Company to the Executive, the Executive shall not be entitled to the Severance Payments.
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(b) Resignation with Good Reason. The Executive shall have the right to terminate the Executive’s employment with the Company during the Employment Period for Good Reason upon thirty (30) days’ written notice to the Company and the Board; provided, that such notice provides a reasonably detailed explanation of the event or circumstance that constitutes Good Reason and such event or circumstance remains uncured (if curable) for ten (10) days after the Company and the Board have received such written notice. If the Executive terminates the Executive’s employment with the Company for Good Reason during the Employment Period, the Executive will be entitled to all payments and benefits as if the Executive had been terminated without Cause pursuant to, and in accordance with, the terms and conditions set forth in 第5(a)节 (包括高管自愿执行的解除协议)。高管因合理原因终止其就业关系而获得的离职支付的权利,只有在高管未能在了解该事件或情况发生或存在后的三十(30)天内向公司和董事会提供书面通知的情况下,才会因该事件或情况而终止。
13. 管辖法律和地点. The Parties, each represented by legal counsel in drafting and negotiating this Agreement and provision, agree that California law shall govern the rights and obligations under this Agreement, without giving effect to any conflict of laws principles that would require application of the laws of any other jurisdiction. In the event litigation is necessary, such legal action shall be commenced only in a State or Federal court of competent jurisdiction located in Orange County, California. Any litigation commenced other than in Orange County, California, shall be subject to being dismissed, stayed or having venue transferred to Orange County, California, at the option of the Party not commencing said litigation. The Parties further waive all objections and defenses to litigation being conducted in Orange County, California, based upon venue or under the doctrine of 不便地点的论坛.
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14. 作业. The services provided hereunder by Executive are personal and may not be assigned by him without the prior consent of the Company. This Agreement may be assigned by the Company without the consent of the Executive.
15. 终止的效力. All of the provisions of this Agreement shall survive termination of this Agreement in accordance with their respective terms. Any termination of the Executive’s employment with the Company shall automatically be deemed to be the simultaneous resignation of all other positions and titles, and directorships (or similar position), the Executive holds with the Company and/or any of its direct and indirect subsidiaries.
16. 全部协议. This Agreement and the Exhibits attached hereto set forth the entire agreement and understanding between the Company, on the one hand, and the Executive, on the other hand, relating to the subject matter herein and merges all prior discussions between the Parties, including any and all statements made by any officer, director, manager, employee, equity holder or representative of any member of the Company Group or any of their respective Affiliates. The Executive understands and acknowledges that, except as set forth in this Agreement and the agreements referred to herein, (a) no other representation or inducement has been made to the Executive, (b) the Executive has relied on the Executive’s own judgment and investigation in executing this Agreement, and (c) the Executive has not relied on any representation or inducement made by any officer, director, manager, employee, equity holder or representative of any member of the Company Group or any of their respective Affiliates. To the extent there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any prior employment or consulting agreement, the terms and conditions of this Agreement shall control.
17. 409A合规性.
(a) It is intended that this Agreement will comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “法规”), and any regulations and guideline issued thereunder (“第409A条”) to the extent that any compensation and benefits provided hereunder constitute deferred compensation subject to Section 409A. This Agreement shall be interpreted on a basis consistent with this intent. The Parties will negotiate in good faith to amend this Agreement as necessary to comply with Section 409A in a manner that preserves the original intent of the Parties to the extent reasonably possible. No action or failure to act, pursuant to this 第17条 shall subject the Company to any claim, liability, or expense, and the Company shall not have any obligation to indemnify or otherwise protect the Executive from the obligation to pay any taxes pursuant to Section 409A.
(b) Notwithstanding anything in this Agreement to the contrary, if any amount or benefit that would constitute non-exempt “deferred compensation” for purposes of Section 409A would otherwise be payable or distributable under this Agreement by reason of the Executive’s separation from service during a period in which the Executive is a “specified employee” (as defined under Section 409A and the final regulations thereunder), then, subject to any permissible acceleration of payment by the Company under Treas. Reg. Section 1.409A-3(j)(4)(ii) (domestic relations order), (j)(4)(iii) (conflicts of interest), or (j)(4)(vi) (payment of employment taxes):
(i) if the payment or distribution is payable in a lump sum, the Executive’s right to receive payment or distribution of such non-exempt deferred compensation will be delayed until the earlier of the Executive’s death or the first (1st) day of the seventh (7;) month following the Executive’s separation from service; and
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(ii) if the payment or distribution is payable over time, the amount of such non-exempt deferred compensation that would otherwise be payable during the six-month period immediately following the Executive’s separation from service will be accumulated and the Executive’s right to receive payment or distribution of such accumulated amount will be delayed until the earlier of the Executive’s death or the first (1st) day of the seventh (7th) month following the Executive’s separation from service, whereupon the accumulated amount will be paid or distributed to the Executive and the normal payment or distribution schedule for any remaining payments or distributions will resume.
(c) If and to the extent required to comply with Section 409A, any payment or benefit required to be paid hereunder on account of termination of the Executive’s employment, service (or any other similar term) shall be made only in connection with a “separation from service” with respect to the Executive within the meaning of Section 409A.
(d) Notwithstanding anything herein to the contrary or otherwise, to the extent necessary to avoid taxes and penalties under Section 409A: (i) the amount of expenses eligible for reimbursement or in-kind benefits provided to the Executive during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to the Executive in any other calendar year; (ii) the reimbursements for expenses for which the Executive is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred; and (iii) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit.
(e) For purposes of Section 409A, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments.
(f) Any “nonqualified deferred compensation” subject to Section 409A of the Code payable under this Agreement shall not be subject to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment, garnishment by creditors, or borrowing, to the extent necessary to avoid tax, penalties and/or interest under Section 409A of the Code
(a) “附属公司是指就任何个人而言,直接或间接通过一个或多个中介机构控制、被控制或与所提及的第一人处于共同控制之下的个人。为此定义的目的,控件包括“”术语“受控于”的含义跟“控制”是相当的。” and ““受同一控制”的含义跟“控制方”是相当的。指的是直接或间接拥有权力来指挥或导致某个人的管理和政策, 无论是通过投票证券的所有权、作为受托人或遗嘱执行人、作为普通合伙人或管理成员、通过合同、协议或其他方式,包括直接或间接拥有有权选举董事会多数成员或类似管理机构的证券。
1.释放. 释放人在此代表释放人及释放人的继任者、受让人、继承人、受益人、遗嘱执行人、管理人、债权人、代表、代理人及其关联公司(“放弃方”)。释放是赠予公司及其母公司、子公司、关联公司、合作伙伴,以及其各自的前任、继任者和受让人,以及各自的过去、现在或未来的成员、官员、董事、股东、受托人、代表、员工、主要人员、代理人、承保人、合作伙伴、贷方、律师和其他顾问;以及前述实体及其计划管理人设立或维持的任何员工福利计划(统称为“免责方”)。考虑到在此和在雇佣协议中规定的承诺和契约,释放人特此完全、最终和不可撤销地释放、解除并永远无条件地解除被释放方的任何义务,包括过去、现在或将来在法律或公正原则下存在或声称存在的任何和所有承诺、行动、债务、款项、索赔、反索赔、诉讼、起诉理由、损害、处罚、要求、负债、义务、成本、费用、合同、契约、争议、协议、承诺、判决和以任何形式的赔偿,无论是已知的或未知的、或有条件的或其他的,释放方随时曾有、现在有或将来可能有的,源自时间的开始到释放人签署本释放的日期,针对被释放方的任何及所有索赔,包括与雇佣协议相关的或因释放人作为公司员工、官员和/或董事的服务以及释放人终止其雇佣而产生的索赔(“要求”)。索赔包括(a)基本工资的支付;奖金;员工福利;丢失的工资或福利;任何其他补偿或福利;补偿性损害;惩罚性损害;罚款;律师费或费用;衡平救济;或任何其他形式的损害或救济;(b)任何基于种族、宗教、肤色、国籍、年龄、性别、性取向或偏好、残疾或其他认可分类的歧视索赔,这些索赔根源于联邦、州、市或地方的雇佣法律,包括普通法下的那些索赔,以及任何涉嫌违反1967年《年龄歧视和雇佣法》的行为(“ADEA”), the Older Workers Benefit Protection Act, Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the Civil Rights Act of 1991, Americans With Disabilities Act, the Employee Retirement Income Security Act of 1974, the Fair Labor Standards Act, the Family and Medical Leave Act, the Occupational Safety and Health Act, or the Worker Adjustment and Retraining Notification Act, all as amended, and any other law; (c) wrongful termination, back pay, or future wage loss; (d) any other claim, whether in tort, contract or otherwise; and/or (e) any claim for costs, fees or other expenses, including attorneys’ fees. Nothing herein shall be deemed to release the Released Parties or any of them hereunder from and the term “开空” shall exclude (i) any claims or other rights that either Party may have arising from a breach by the other Party of its obligations set forth in this Release, (ii) any claim, right or remedy of any of the Releasing Parties under, related to, arising out of or in connection with the provisions of the Employment Agreement
that survive the termination of the Releasor’s employment, or any of the Released Parties’ obligations under any such agreements in this subsection (ii), (iii) the Company’s obligations to make the Severance Payments set forth in the Employment Agreement or to provide benefits under any other plan of the Company, or (iii) any claims or rights that cannot be waived or released as a matter of law.
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2.Release of Unknown Claims. The Releasor represents that the Releasor is not aware of any claims other than the claims that are released by this Agreement. The Releasor expressly acknowledges and agrees that the releases herein are general in nature and as broad as may be granted under applicable law, and that this Agreement fully and finally settles and forever resolves all of the claims released hereby, even those which are unknown, unanticipated or unsuspected. Upon the advice of legal counsel, the Releasor hereto hereby acknowledges that the Releasor understands, and expressly waives, all benefits and protections under Section 1542 of the Civil Code of California, as well as under any other statutes, legal decisions or common law principles of similar effect to the extent that such benefits or protections may contravene the provisions of this Agreement. Section 1542 of the Civil Code of California states:
5.不起诉协议. The Releasor covenants and agrees not to institute, or to authorize any person on behalf of the Releasor to institute, any action or proceeding against any of the Released Parties with respect to the released Claims. The Releasor understands that nothing contained in this Agreement limits Releasor’s ability to file a charge or complaint with the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission, or any other federal, state, or local government agency or commission (collectively, the “政府机构”). However, the Releasor also understands that the Releasor is waiving Releasor’s right to recover monetary damages or other individual relief in connection with any such charge, but not Releasor’s right to receive an award pursuant to any whistleblower provisions for information provided to any Government Agencies, consistent with applicable law. The Releasor further understands that this Agreement does not limit Releasor’s ability to communicate with any Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information, without notice to the Company.