Exhibit 10.15
EMPLOYMENT
AGREEMENT
Between
GRAHAM PACKAGING HOLDINGS
COMPANY,
GRAHAM PACKAGING COMPANY,
L.P.,
And
The Chief Financial
Officer
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Exhibit 10.15
EMPLOYMENT
AGREEMENT
EMPLOYMENT AGREEMENT dated as of
March 28, 2007 and effective as of December 4, 2006 (the
“Agreement”) between Graham Packaging Holdings Company
(“Holdings”), Graham Packaging Company, L.P., a
Delaware Limited Partnership (“Limited Partnership”, or
“L.P.” or “Company”), and Mark S.
Burgess (“Executive”).
WHEREAS, the Company desires to
employ Executive as its Chief Financial Officer and Holdings
desires to employ Executive as its Chief Financial Officer,
Assistant Treasurer and Assistant Secretary and Executive desires
to be employed by the Company and Holdings in each such capacity
and on the terms and subject to the conditions set forth
herein:
NOW, THEREFORE, in consideration of
the promises and the mutual agreements contained herein, the
Company, Holdings and Executive hereby agree as follows:
ARTICLE I
DEFINITIONS
The terms set forth below have the
following meanings (such meanings to be applicable to both the
singular and plural forms, except where otherwise expressly
indicated):
1.1 “
Accounting Firm ” - see Exhibit A.
1.2 “
Accrued Base Salary ” means the amount of
Executive’s Base Salary that is accrued but not yet paid as
of the Date of Termination.
1.3 “
Affiliate ” means any Person directly or indirectly
controlling, controlled by, or under direct or indirect common
control with, the Company. For the purposes of this definition, the
term “control” when used with respect to any Person
means the power to direct or cause the direction of management or
policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or
otherwise.
1.4 “
Agreement ” - see the recitals to this
Agreement
1.5 “
Agreement Date ” means the effective date that is
specified in the recitals to this Agreement.
1.6 “
Annual Bonus ” - see Section 4.2(a).
1.7 “
Base Salary ” - see Section 4.1.
1.8 “
Beneficial Owner ” means a “beneficial
owner,” as such term is defined in Rule 13d-3 under the
Exchange Act (or any successor rule thereto).
1.9 “
Beneficiary ” - see Section 9.3.
1.10 “
Blackstone ” means collectively, Blackstone Capital
Partners III Merchant Banking Fund L.P., Blackstone Offshore
Capital Partners III L.P. and their Affiliates (other than the
Company and its Subsidiaries).
1.11 “
Board ” means the Board of Directors of the Company
subsequent to the incorporation of the L.P. and the substitution of
it as successor for the L.P. as a party to this Agreement. Prior
thereto, the Board shall mean the General Partner (as defined in
the LP Agreement).
1.12 “
Cause ” means any of the following:
(a) Executive
commits an act of gross negligence, willful misconduct, fraud,
embezzlement, misappropriation or breach of fiduciary duty against
Holdings, the Company or any of its affiliates or subsidiaries, or
shall be convicted by a court of competent jurisdiction of, or
shall plead guilty or nolo contendere to, any felony or any
crime involving moral turpitude or any crime which reasonably could
affect the reputation of Holdings, the Company or the
Executive’s ability to perform the duties required under the
Employment Agreement;
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Exhibit 10.15
(b) Executive
commits a material breach of any of the covenants in the Employment
Agreement, which breach has not been remedied within 30 days of
notice thereof, or
(c) Executive
habitually and willfully neglects his obligations under the
Employment Agreement or the Executive’s duties as an employee
of Holdings or the Company and fails to correct such action within
30 days of notice thereof.
1.13 “
Code ” means the Internal Revenue Code of 1986, as
amended from time to time.
1.14 “
Committee ” means the Compensation Committee of the
Board.
1.15 “
Common Stock ” means the common stock of the Company
following its incorporation, and the equivalent L.P. units prior to
its incorporation.
1.16 “
Company ” see the recitals to this
Agreement.
1.17 “
Company Inventions ” - see
Section 8.2(b).
1.18 “
Date of Termination ” means the effective date of a
Termination of Employment for any reason, including death or
Disability, whether by either the Company or the
Executive.
1.19 “
Director ” means a director of the Company subsequent
to its incorporation or a member of the governing body of the L.P.
prior to its incorporation.
1.20 “
Disability ” means the Executive is
“disabled” as determined under Section 409A of the
Code.
1.21 “
Employment Period ” - see Section 3.1.
1.22 “
Exchange Act ” means the Securities Exchange Act of
1934, as amended or any successors thereto.
1.23 “
Excise Tax ” - see Exhibit A.
1.24 “
Executive ” - see the recitals to this
Agreement.
1.25 “
Extension Date ” - see Section 3.2.
1.26 “
Good Reason ” means the termination of the
Executive’s employment with the Company within 90 days
following the occurrence, without Executive’s written
consent, of any of the following events:
(a) a
substantial diminution in Executive’s position, authority,
duties or responsibilities as contemplated by the preamble to this
Agreement, excluding any isolated, insubstantial and inadvertent
action which is remedied by Company promptly after receipt of
notice thereof from the Executive;
(b) a
decrease in Executive’s Base Salary or Target Annual
Bonus;
(c) a
reduction in Executive’s participation in the Company’s
benefit plans and policies to a level materially less favorable to
Executive unless such reduction applies to a majority of senior
level executives; or
(d) the
announcement of the relocation or the actual relocation of the
Executive’s primary place of employment to a location 50 or
more miles from the Company’s current headquarters;
or
(e) a
breach by the Company of any of its obligations under Articles IV,
V, VI and VII of this Agreement and the failure to correct the same
within ten (10) days of notice thereof.
1.27 “
Gross-Up Payment ” - Exhibit A.
1.28 “
Holdings Board ” means the Board of Directors of
Holdings
1.29 “
Inventions ” see Section 8.2(a).
1.30 “
LP Agreement ” means the Amended and Restated
Agreement of Limited Partnership of Graham Packaging
Company.
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Exhibit 10.15
1.31 “
Payment ” - see Exhibit A.
1.32 “
Permitted Transferee ” means the spouse of Executive,
a lineal descendant of Executive or a spouse of a lineal descendant
of Executive or a trust, limited partnership or other entity
principally benefiting all or a portion of such
individuals.
1.33 “
Person ” means any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization,
association, corporation, institution, public benefit corporation,
entity or government instrumentality, division, agency, body or
department.
1.34 “
Prior Inventions ” - see
Section 8.2(a).
1.35 “
Prorata Annual Bonus ” means the product of (a) the
Annual Bonus Executive would have been entitled to receive pursuant
to Section 4.2 hereof in the Year of the Executive’s
Termination of Employment multiplied by (b) a fraction of which the
numerator is the numbers of days that have elapsed in such Year of
Termination of Employment through the Date of Termination and the
denominator is 365.
1.36 “
Restricted Period ” means the twenty-four month period
immediately following a Termination of Employment for any
reason.
1.37 “
Safe Harbor Amount ” see Exhibit A.
1.38 “
Shareholder ” or “ Stockholder ”
means an owner of the Company’s securities.
1.39 “
Subsidiary ” means, with respect to any Person,
(a) any corporation of which more than 50% of the outstanding
capital stock having ordinary voting power to elect a majority of
the board of directors of such corporation (irrespective of
whether, at the time, stock of any other class or classes of such
corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time, directly or
indirectly, owned by such Person, and (b) any partnership,
limited liability company or other entity in which such Person has
a direct or indirect interest (whether in the form of voting or
participation in profits or capital contribution) of more than
50%.
1.40 “
Target Annual Bonus ” means the product of Base Salary
(at a point in time) multiplied by 150 percent, as such percentage
may be adjusted upwards from time to time by the Board.
1.41 “
Termination For Good Reason ” means a Termination of
Employment during the Employment Period by Executive for Good
Reason.
1.42 “
Termination of Employment ” means a termination by the
Company or by Executive (or due to Executive’s death) of
Executive’s employment with the Company or its
Affiliates.
1.43 “
Termination Without Cause ” means a Termination of
Employment during the Employment Period by the Company for any
reason other than Cause or Executive’s death or
Disability.
1.44 “
Underpayment ” - see Exhibit A.
1.45 “
Year ” means a calendar year period ending on
December 31.
ARTICLE II
DUTIES
2.1
Duties . The Company shall employ Executive during the
Employment Period as its Chief Financial Officer and Holdings shall
employ Executive during the Employment Period as its Chief
Financial Officer, Assistant Treasurer and Assistant Secretary.
During the Employment Period, Executive shall perform the duties
assigned to him hereunder by the Company’s Chief Executive
Officer and the Holdings Board from time to time, shall devote his
full business time, attention and effort to the affairs of the
Company and shall use his reasonable best efforts to promote the
interests of the Company. During the Employment Period, and
excluding any periods of disability, vacation, or sick leave to
which Executive is entitled, Executive agrees to devote his
full
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Exhibit 10.15
business time and attention and time
to the business and affairs of the Company. If requested, Executive
shall also serve as a member of the Board without additional
compensation.
2.2
Other Activities . Executive may serve on one corporate
board other than the Company and Holdings, and may also
(i) serve on other corporate, civic or charitable boards or
committees, deliver lectures, fulfill speaking engagements, or
teach at educational institutions, subject to the consent of the
Board (which shall not be unreasonably withheld) and/or
(ii) manage personal investments, provided that all such
activities do not individually or in the aggregate significantly
interfere with the performance of his duties under this Agreement
or violate Section 8.1 of this Agreement.
ARTICLE III
EMPLOYMENT PERIOD
3.1
Employment Period . Subject to Section 3.2 and the
termination provisions hereinafter provided, the term of
Executive’s employment under this Agreement (the
“Employment Period”) shall begin on the Agreement Date
and end on the third anniversary of the Agreement Date, or, if
applicable at the end of any extension pursuant to
Section 3.2. The employment of Executive by the Company shall
not be terminated other than in accordance with
Article VII.
3.2
Extensions of Employment Period . Commencing on the third
anniversary of the Agreement Date, and on each anniversary date
thereafter, (each an “Extension Date”) if 90 days
before that date either Holdings or the Company has not delivered
to Executive, and Executive has not delivered to Company and
Holdings, a written notice that the Employment Period will not be
extended, the Employment Period will be automatically extended for
one year from its then scheduled expiration date (i.e., the next
occurring Extension Date).
ARTICLE IV
COMPENSATION
4.1
Salary . The Company shall pay Executive in accordance with
its normal payroll practices (but not less frequently than monthly)
an annual salary at a rate of $450,000 per year (“Base
Salary”). During the Employment Period, the Base Salary shall
be reviewed at least annually by the Committee after consultation
with Executive and may from time to time be increased as determined
by the Committee. Effective as of the date of any such increase,
the Base Salary as so increased shall be considered the new Base
Salary for all purposes of this Agreement. Any increase in Base
Salary shall not limit or reduce any other obligation of the
Company to Executive under this Agreement.
4.2
Annual Bonus .
(a) Subject
to Article 7, Executive shall be eligible to earn an annual
cash bonus (“Annual Bonus”) in accordance with the
terms hereof for the current Year and each subsequent Year that
begins during the Employment Period. Executive shall be eligible
for an Annual Bonus based upon the achievement of the financial
budget or other performance criteria established by the Board at
its discretion. The Annual Bonus shall be equal to the Target
Annual Bonus upon full achievement of the performance criteria, but
may be less than the Target Annual Bonus upon lesser levels of
achievement.
(b) The
Company shall pay the entire Annual Bonus that is payable with
respect to a Year in a lump-sum cash payment within 2½
months following the close of such Year. Any such Annual Bonus
shall in any event be paid no later than the date annual bonuses
are paid to the other senior executives of the Company.
ARTICLE V
OTHER BENEFITS
5.1
Incentive, Savings and Retirement Plans . In addition to
Base Salary and the Annual Bonus, Executive shall be entitled to
participate during the Employment Period in all incentive, savings
and retirement
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Exhibit 10.15
plans, practices, policies and
programs that are from time to time generally available to other
senior executives of the Company.
5.2
Welfare Benefits . During the Employment Period, Executive
and/or his eligible dependents, as the case may be, shall be
eligible for participation in all benefits under welfare benefit
plans, practices, policies and programs provided by the Company
(including any medical, prescription, dental disability, salary
continuance, employee life, group life, dependent life, accidental
death and travel accident insurance plans and programs) generally
available to other senior executives of the Company and, to the
extent permissible under any medical and prescription plans,
without regard to any applicable waiting periods.
5.3
Fringe Benefits . During the Employment Period, Executive
shall be entitled to all fringe benefits that are from time to time
generally available to other senior executives of the
Company.
5.4
Vacation . During the Employment Period, Executive shall be
entitled to paid vacation time in accordance with the plans,
practices, policies, and programs generally available to other
senior executives of the Company, with a minimum of 4 weeks
vacation per year.
5.5
Expenses . During the Employment Period, Executive shall be
entitled to receive prompt reimbursement for all reasonable
employment related expenses incurred by Executive for the prior
month upon the receipt by either of the Company of accounting in
accordance with practices, policies and procedures generally
available to other senior executives of the Company; provided that
all reimbursements shall in any event be made within 2½
months following the Year in which they were incurred.
5.6
Office; Support Staff . During the Employment Period,
Executive shall be entitled to an office or offices of a size and
with furnishings and other appointments, and to secretarial and
other assistance, appropriate to his position and duties under this
Agreement.
5.7
Relocation Package . The Executive shall be entitled to
receive reimbursement of moving expenses and expenses in connection
with the sale or purchase of a home (including brokerage
commissions, closing costs and reasonable attorneys’ fees) up
to a maximum total expense of $100,000. Such amount shall be
provided, to the maximum extent possible, under an accountable plan
and, to the extent not so provided, shall be reimbursed on an
after-tax basis. In addition, the Executive shall be entitled to
receive payment on an after-tax basis for temporary living expenses
for six months, in the amount of $8,333 per month, payable on the
first regularly scheduled payroll date in each month.
5.8
Tax Gross-Up Payment . If it shall be determined that any
payment to Executive pursuant to this Agreement or any other
payment or benefit from the Company would be subject to the excise
tax imposed by section 4999 of the Code, then Executive shall
receive a Gross-Up Payment pursuant to Exhibit A attached
hereto.
5.9
Additional Bonus . Executive shall be entitled to receive an
additional bonus (“Additional Bonus”) of $75,000,
payable on December 31, 2006.
ARTICLE VI
OTHER EXECUTIVE BENEFITS
6.1
Equity Incentive Agreement . Executive shall be eligible to
participate in Holdings 2004 Management Option Plan pursuant to
those Option Agreements set forth as Exhibits B and C
hereto.
6.2
Indemnification . The Company shall, to the maximum extent
permitted by law, and in addition to any such right granted to or
available to the Executive under the Company’s Charter,
By-laws or standing or other resolutions, defend, indemnify and
hold harmless the Executive from and against any and all claims
made against the Executive concerning or relative to his service,
actions or omissions on behalf of the Company as an officer,
employee, director or agent of the Company and Holdings; provided,
however, that the obligation to indemnify the Executive shall not
apply to any claim made against the Executive that arises out of
the act, omission or failure to act that would constitute Cause for
the Executive’s termination of employment. The Company shall,
upon the Executive’s request, promptly advance or pay any
amounts for reasonable costs, charges, or expenses (including any
legal fees and expenses incurred by counsel retained by the
Executive) in respect of his right to indemnification hereunder or
in furtherance of such right, subject to a later determination as
to the Executive’s ultimate right to
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Exhibit 10.15
receive indemnification. The
Executive’s right to indemnification shall survive until the
expiration of all applicable statutes of limitations, without
regard to the earlier termination of the Executive’s
employment.
ARTICLE VII
TERMINATION BENEFITS
7.1
Termination of Employment . The Employment Period and
Executive’s employment hereunder may be terminated by either
party at any time and for any reason; provided that Executive will
be required to give the Company at least 30 days’ advance
written notice of any resignation of Executive’s employment
except if such resignation is for Good Reason. Notwithstanding any
other provision of this Agreement, the provisions of this
Article VII shall exclusively govern Executive’s rights
under this Agreement following the expiration of the Employment
Period or if Executive’s employment with the Company or its
Affiliates is terminated during the Employment Period for any
reason.
7.2
Termination for Cause or Other Than for Good Reason, etc
.
(a) If
the Company terminates Executive’s employment during the
Employment Period for Cause or Executive terminates his employment
during the Employment Period other than for Good Reason, death or
Disability, the Company shall pay to Executive immediately after
the Date of Termination an amount equal to Executive’s
Accrued Base Salary, accrued but unpaid vacation, unpaid business
expenses properly incurred by Executive in accordance with Company
policy prior to the date of Executive’s
termination.
(b) Before
terminating Executive’s employment for Cause, the Board will
specify in writing to Executive in detail the nature of the act,
omission, refusal, or failure that it deems to constitute
Cause.
7.3
Termination for Death or Disability . If Executive’s
employment terminates during the Employment Period due to his death
or Disability, the Company shall pay to Executive or his
Beneficiaries, as the case may be, immediately after the Date of
Termination an amount that is equal to the total of (i) the
Executive’s Accrued Base Salary, (ii) accrued but unpaid
vacation, (iii) unpaid business expenses properly incurred by
Executive in accordance with Company policy prior to the date of
Executive’s termination, and (iv) any accrued but unpaid
Annual Bonus.
7.4
Termination Without Cause or Resignation for Good Reason .
Upon termination of the Executive’s employment with the
Company and Holdings during the Employment Period either (i) by the
Company and Holdings without Cause or (ii) by the Executive’s
resignation for Good Reason, and subject to the Executive’s
execution and non-revocation of a release in substantially such
reasonable form as is provided by the Company (such release shall
include provisions regarding non-disparagement of the Company and
Holdings, the Executive’s cooperation with legal claims, and
the Executive’s compliance with the covenants set forth in
Article VIII of this Agreement), the Executive will receive in
24 monthly installments an amount equal to two times the sum of:
(i) Base Salary and (ii) the average Annual Bonus earned
in the preceding three years, or, if termination occurs prior to
such three year period, the average Annual Bonus earned during such
shorter period, or if termination occurs in the first Year of the
Employment Period, the Target Bonus. In addition to the above
payments, (a) Executive shall receive upon termination of
employment, a Prorata Annual Bonus at the time the Annual Bonus
would have otherwise been payable had Executive’s employment
not terminated and the continuation of non-taxable health and
dental benefits to which Executive is entitled as of the date of
termination for 12 months; provided that such benefits shall cease
upon the Executive becoming eligible for comparable benefits from a
new employer; (b) Executive shall receive, for a period of 12
months following the date of termination, but no later than the
point at which Executive is employed on a substantively full-time
basis, executive career transition services, not to exceed $25,000
in the aggregate; and (c) the Time-Based Tranche Options provided
to the Executive pursuant to the Option Agreement attached hereto
as Exhibit B shall immediately become fully vested.
Notwithstanding the foregoing, if
Executive is a “specified employee” under Section 409A
of the Code, and any payments described above would result in the
imposition of an additional tax under that section, then any of the
above payments due during the six months following the termination
of employment shall be accumulated and paid on the day following
the six month anniversary of the Executive’s termination of
employment.
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Exhibit 10.15
7.5
Other Termination Benefits . In addition to any amounts or
benefits payable upon a Termination of Employment hereunder,
Executive shall, except as otherwise specifically provided herein,
be entitled to any payments or benefits provided under the terms of
any plan, policy or program of the Company in which Executive
participates or as otherwise required by applicable law.
7.6
Election Not to Extend the Employment Period . If the
Company elects not to extend the Employment Period pursuant to
Section 3.2 such that the Employment Period terminates, the
nonextension shall be treated as a Termination without
Cause.
7.7
Continued Employment Beyond the Expiration of the Employment
Period . Unless the parties otherwise agree in writing,
continuation of Executive’s employment with the Company
beyond the expiration of the Employment Period shall be deemed an
employment at-will and shall not be deemed to extend any of the
provisions of this Agreement and Executive’s employment may
thereafter be terminated at will by either Executive or the
Company; provided that the provisions of Article VIII of this
Agreement shall survive any termination of this Agreement or
Executive’s termination of employment hereunder.
7.8
Board/Committee Resignation . Upon Executive’s
Termination of Employment for any reason, Executive agrees to
resign, as of the date of such termination and to the extent
applicable, from the Board (and any committees thereof) and the
Board of Directors (and any committees thereof) of any of the
Company’s affiliates.
7.9
Property . Upon Executive’s termination of Employment
with the Company for any reason, Executive shall return all
property of the Company and Holdings to the Company.
ARTICLE VIII
RESTRICTIVE COVENANTS
8.1
Non-Solicitation of Employees; Confidentiality;
Non-Competition. .
(a) Executive
covenants and agrees that, at no time during the Employment Period
nor during the Restricted Period, will Executive:
(i) Directly
or indirectly employ or seek to employ any person (other than his
personal assistant) employed as of the date of Executive’s
Termination of Employment or who left the employment of the Company
or its Affiliates coincident with, or within six months prior to or
after, the Executive’s Termination of Employment with the
Company or otherwise encourage or entice any such person to leave
such employment (provided that this
Section 8.1(a)(i) shall not apply either to persons who
had not become employed by the Company before the Date of
Termination or to persons whose employment ended at any time as a
result of the Company’s termination of those individuals
without cause);
(ii) Become
employed by, enter into a consulting arrangement with or otherwise
agree to perform personal services for a Competitor (as defined in
section 8.1 (b)).
(iii) Acquire
an ownership interest, or an option to purchase an ownership
interest in a Competitor, other than a publicly traded Competitor
provided that ownership or option position in such publicly traded
Competitor does not exceed 5 percent;
(iv) Solicit
any business of the Company on behalf of or for the benefit of a
Competitor; or
(v) Interfere
with, or attempt to interfere with, business relationships (whether
formed before, on or after the date of this Agreement) between the
Company or any of its affiliates and customers, clients, suppliers
of the Company or its Affiliates.
(b) For
purposes of the Section, “Competitor” means any Person
that produces blowmolded plastic containers or produces or provides
any other product or service of the Company that represents, as of
the Date of Termination, at least 10% of the consolidated revenues
of the Company (including, without limitation, products or services
that Executive is aware, as of the Date of Termination, that the
Company had specific plans (as evidenced through the most recent
annual corporate business plan or by resolutions of the Board) to
produce or provide during the twelve month period following the
Date of Termination and such products or services are reasonably
anticipated
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Exhibit 10.15
to represent at least 10% of the
consolidated revenues of the Company within the two years following
the Date of Termination) that are competitive with those sold by a
business that is being conducted by the Company or any Subsidiary
at the time in question and was being conducted at the Date of
Termination. Notwithstanding anything to the contrary in this
Section, goods or services shall not be deemed to be competitive
with those of the Company solely as a result of Executive’s
being employed by or otherwise associated with a business of which
a unit is in competition with the Company or any Subsidiary (a
“Competitive Unit”) but as to which unit Executive does
not have direct or indirect responsibilities for the products or
services involved; provided, that such Competitive Unit contributes
less than 25% of the consolidated revenues for the most recently
completed fiscal year of such business.
(c) Executive
covenants and agrees that at no time during the Employment Period
nor at any time following any Termination of Employment will
Executive communicate, furnish, divulge or disclose in any manner
to any Person any Confidential Information (as defined in
Section 8.1(d) without the prior express written consent of
the Company other than in the course of Executive’s
employment. After a Termination of Employment, Executive shall not,
without the prior written consent of the Company, or as may
otherwise be required by law or legal process, communicate or
divulge such Confidential Information to anyone other than the
Company and its designees.
(d) For
purposes of this Section, “Confidential Information”
shall mean financial information about the Company, contract terms
with vendors and suppliers, customer and supplier lists and data,
know-how, software developments, inventions, formulae, technology,
designs and drawings, or any Company property or confidential
information relating to research, operations, finances, current and
proposed products and services, vendors, customers, advertising,
costs, marketing, trading, investment, sales activities, promotion,
manufacturing processes, or the business and affairs of the Company
generally, or of any subsidiary or affiliate of the Company, trade
secrets and such other competitively-sensitive information, except
that Confidential Information shall not include any information
that was or becomes generally available to the public
(i) other than as a result of a wrongful disclosure by
Executive, (ii) as a result of disclosure by Executive during
the Employment Period that he reasonably and in good faith believes
is required by the performance of his duties under this Agreement,
or (iii) any information compelled to be disclosed by
applicable law or administrative regulation; provided that
Executive, to the extent not prohibited from doing so by applicable
law or administrative regulation, shall give the Company written
notice of the information to be so disclosed pursuant to clause
(iii) of this sentence as far in advance of its disclosure as
is practicable.
(e) Executive
agrees that upon Executive’s Termination of Employment with
the Company for any reason, he will return to the Company
immediately all memoranda, books, papers, plans, information,
letters and other data, and all copies thereof or therefrom, in any
way relating to the business of the Company, its affiliates and
subsidiaries, except that he may retain only those portions of
personal notes, notebooks and diaries that do not contain
Confidential Information of the type described in the preceding
sentence. Executive further agrees that he will not retain or use
for Executive’s own benefit, purposes or account or the
benefit, purposes or account of any other person, firm,
partnership, joint venture, association, corporation or other
business designation, entity or enterprise, other than the Company
and any of its Subsidiaries or Affiliates, at any time any trade
names, trademark, service mark, other proprietary business
designation, patent, or other intellectual property of the Company
or its Affiliates.
8.2
Inventions. .
(a)
Prior Inventions . Executive has attached hereto, as Exhibit
D, a list describing all inventions, works of authorship (including
software, related items, databases, documentation, site content,
text or graphics), developments, and improvements that relate to
the Company’s proposed or current business, services,
products or research and development (“Inventions”)
that were created or contributed to by Executive either solely or
jointly with others prior to Executive’s employment with the
Company and that relate to the Company’s proposed or current
business, services, products or research and development
(collectively referred to as “Prior Inventions”); or,
if no such list is attached, Executive represents that there are no
such Prior Inventions. If in the course of Executive’s
employment with the Company, Executive uses or relies upon a Prior
Invention in Executive’s creation or contribution to any work
of authorship, invention, product, service, process, machine or
other property of the Company, Executive will inform the Company
promptly and, upon request, use Executive’s best efforts to
procure any consents of third parties necessary for the
Company’s use of such Prior Invention. To the fullest extent
permissible by law, Executive hereby grants the Company a
non-exclusive royalty-free, irrevocable, perpetual, worldwide
license under all of Executive’s Prior Inventions to make,
have made, copy, modify, distribute, use and
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Exhibit 10.15
sell works of authorship, products,
services, processes and machines and to otherwise operate the
Company’s current and future business.
(b)
Ownership of Inventions . Executive agrees that Executive
will promptly make full written disclosure to the Company, and
hereby assign to the Company, or its designee, all of
Executive’s right, title, and interest in and to any and all
Inventions, whether or not patentable, that Executive may solely or
jointly conceive or develop or reduce to practice, or cause to be
conceived or developed or reduced to practice, during the period of
time Executive is in the employ of the Company (collectively
referred to as “Company Inventions”). Executive further
acknowledges that all original works of authorship that are created
or contributed to by Executive (solely or jointly with others)
within the scope of and during the period of Executive’s
employment with the Company are to be deemed “works made for
hire,” as that term is defined in the United States Copyright
Act (17 U.S.C. Section 101), and the Company will own all
right, title and interest in such works, including all copyright
and all intellectual property therein shall be the sole property of
the Company or its designee for all territories of the world in
perpetuity, including any and all copyright registrations,
copyright applications and all other copyrightable materials,
including any renewals and extensions thereof, and in and to all
works based upon, derived from, or incorporating the works covered
by such copyrights and in and to all income, royalties, damages,
claims, and payments now or hereinafter due or payable with respect
thereto, and in all causes of action, either in law or in equity
for past, present or future infringement based on said copyrights,
and in and to all rights corresponding to the foregoing throughout
the world. To the extent any of such works are deemed not to be
“works made for hire,” Executive hereby assigns the
copyright and all other intellectual property rights in such works
to the Company.
(c)
Contracts with the United States . Executive agrees to
execute any licenses or assignments as required by any contract
between the Company and the United States or any of its
agencies.
(d)
Maintenance of Records . Executive agrees to keep and
maintain adequate and current written records of all Company
Inventions made by Executive (solely or jointly with others) during
the term and within the scope of Executive’s employment with
the Company. The records will be in the form of notes, sketches,
drawings, and any other format that may be specified by the
Company. The records will be available to and remain the sole
property and intellectual property of the Company at all
times.
(e)
Further Assurances . Executive covenants to take all
requested actions and execute all requested documents to assist the
Company, or its designee, at the Company
