Unassociated Document


    AGREEMENT

    


    EXECUTIVE AGREEMENT made of
this 12th day of May, 2010, between Anthony G. Roth (the “Roth”
and/or “Executive”),
and AFH Holding II, Inc., to be renamed First Blush Brands, Inc., a Blank Check Holding
Company identified for business (the “Company”).

    


    WHEREAS, the Shareholders
& Board of Directors of the Company believes it to be to its advantage to
ensure that Roth render his services to the Company as hereinafter
provided;

    


    WHEREAS, it is anticipated that a business
combination of First Blush, Inc., a Delaware corporation, that manufactures,
markets and distributes certain juice and tea retail products, and the Company
shall be concluded on or before May 31, 2010; and

    


    WHEREAS, As a newly appointed
Director, Roth is empowered to negotiate capitalization, mergers &
acquisitions, and direct general administration of operations as they pertain to
the development of the Company.  This Agreement requires that Roth be
installed as Chief Executive Officer and President of the Company contemplated
to merger with First Blush, Inc. whereby he will be trusted with extensive
confidential information and trade secrets of the Company and that he develop a
thorough and comprehensive knowledge of all details of the Company’s business to
improve the business during the capitalization and business combination
period.   Roth shall remain as the President & CEO and
Director of the combined business upon merger;

    


    NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:

    


    1.           Position
and Responsibilities:  Roth shall serve as the Executive
Chairman, and upon closing the planned capitalization, Roth shall be installed
as President and Chief Executive Officer of the Company, and Roth shall exercise
such powers and comply with and perform such directions and duties regarding the
business and affairs of the Company as may from time to time be vested in or
given to him by the Board of Directors of the Company (the “Board) and shall use
all best efforts to improve and extend the business of the
Company.  Roth shall at all times report to, and his activities shall
at all times be subject to the direction and control of, the
Board.  Roth’s duties will include managing the strategic direction of
the Company’s business, investor relations, marketing, sales, product
development, trade secrets, IT technology and business development, including
leading potential merger and acquisitions. Upon installation as President &
CEO, Roth agrees to devote  his time, attention and services, on an
exclusive basis as CEO, to the discharge of such duties for the best interest of
the Company. The Board shall nominate and appoint Roth as Executive Chairman of
the Board for so long as he serves as President and Chief Executive Officer of
the Company.  Thereafter, during the term of this Agreement, and for
so long as Roth remains the Chief Executive Officer, the Board of Directors
shall designate and nominate the Roth as a director of the Company and, if
elected by the members or equity holders of the Company, the Roth shall accept
such position and perform his duties thereunder.  The parties
acknowledge and recognize that the Executive serves as an advisor and/or board
member of various other organizations and acknowledges that the Executive is
free to continue and expand these relationships provided they are disclosed to
the Board of Directors; provided, they do not impact or conflict with the Roth’s
services to the Company.

    


    2.           Compensation:
Salary, Bonuses and Other Benefits. During the term of this
Agreement, the Company shall pay or accrue documented,  reasonable,
(pre-approved above $1,000), third party, out-of-pocket expenses not to exceed
$6,000 without written approval incurred by Roth for the months prior to the
Company closing its first round of financing (which shall be not less than
$1,500,000, unless otherwise agreed to by the parties), such closing anticipated
to be not later than May 31, 2010 (“First Round Financing”).  Upon the
closing of the First Round Financing, the terms and conditions of this Agreement
shall take effect, including but not limited to the obligations of the Company
to pay the salary, benefits and  other fringe benefits contained
herein.  The parties acknowledge and agree that all out of pocket
costs and expenses owed to Roth hereunder shall not be due and payable until the
Closing of the Financing, and such reimbursement may be paid in the form of cash
..

    


    (A)           Salary.  In consideration
of the services to be rendered by the Roth to the Company under this Agreement,
upon closing of the First Round Financing of the Company, Roth will receive an
annual base salary of $345,000.  Such annual salary shall be payable
in conformity with the Company’s customary practices for executive compensation
as such practices shall be established or modified from time to
time.  Salary payments shall be subject to all applicable federal and
state withholding, payroll and other taxes, in conformity with the Company’s
prevailing practices.  The annual base salary for subsequent years
during the term of this Agreement shall be reviewed annually by the Board, and
shall be determined by the Board for each subsequent year during the term of
this Agreement.

     

    
      
         


      

      
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    (B)           Bonus.  Roth shall be
eligible for bonuses based upon targets, goals and objectives established in
good faith by the Roth and the Board.  The full bonus will be paid if
the Roth achieves all of the targets, goals and objectives so established.
Roth’s annual bonus shall be targeted at, 50% of the then current annual base
salary.  The annual bonus award will be based upon achievements in
three areas; 20% of the award will be upon the success of strategic objectives
as initiated periodically and approved by the Board of Directors’; 30% of the
award will be based upon the achievement of the Company’s Revenue Performance
goals; and 50% of the award will be based upon the individual performance, the
Company’s combined financial performance measurements including profitability
(EBITA) and the intrinsic/market value of the Company, financing efforts and
success.  The annual bonus for Roth shall be payable in cash or
Options at the mutual written agreement of Roth and the Board and will be due
the month following the delivery of the Company’s annual operating results to
the Board of Directors and shall be awarded at the discretion of the Board of
Directors, unless otherwise agreed to by the parties. In addition to the above
bonus schedules, Roth shall also receive a pro-rata% ownership of founding stock
in the newly formed Company, post merger with First Blush, Inc., in
consideration for his $75,000 capital investment in the Blank Check Holding Co.
Roth’s ownership % will be adjusted to match the pro rata share based on the
final valuation of the First Round Financing.

    


    (C)           Incentive
Stock Options.  Roth shall be granted options pursuant to the
Company’s Stock Option Plan (“Plan”) to purchase no less than 5% of Company’s
fully-diluted shares at the time the Plan is adopted by the Shareholders and/or
Board of Directors.  The exercise price shall be set by the Board of
Directors on the date of grant.  Provided Roth is still employed by
the Company, the  options shall vest over a four (4) year period as
follows:  25% shall vest 12 months  after the grant; and 75%
shall vest in quarterly installments thereafter. Roth agrees to enter into a
stock option agreement with Company containing the above terms and provisions of
the options together with such other terms and conditions as counsel for the
Company may reasonably require to assure compliance with applicable state and
federal law and stock exchange requirements in connection with the issuance of
Company common stock upon exercise of options to be granted as provided herein,
or as may be required to comply with the Plan.

    


    (D)           Reimbursement
of Expenses; Fringe Benefits.  The Roth will be
entitled to prompt reimbursement for all of his third party, documented out of
pocket costs and expenses related to business travel, lodging and entertainment
in accordance with the Company’s prevailing policy for Directors and
Officers.  Roth will be entitled to participate on the same basis with
all other officers and Directors of the Company in the Company’s standard
benefits package made generally available to all other officers and employees,
including 401(k), group health, disability, & life insurance programs, and
all benefits.

    


    (E)           Vacation.  Roth
shall be entitled to a paid vacation (taken consecutively or in segments) of
three (3) weeks during each fiscal year, adjusted pro rata for any partial
fiscal year during the term hereof.  Roth may accrue a maximum of up
to 6 weeks; any accrued and unused vacation in excess of 6 weeks shall be
forfeited by Roth.  Roth agrees that he shall not take more than two
weeks of consecutive vacation time during the first twenty-four (24) months of
employment.  Roth and the Board may from time-to-time mutually agree
to compensate Roth for unused vacation via payment for time served in cash or
equity upon the sole discretion of the Board of Directors.

    


    3.           Performance
Review.  Commencing on the
first anniversary of this Agreement, and throughout the term of this Agreement,
the Board and Roth shall in good faith review the performance by, and the
compensation payable to, Roth for the prior year and the proposed performance
by, and compensation to, Roth for the then forthcoming year.

    


    4.           Term.  The term of this
Agreement shall commence on the date first above written and shall terminate on
the earlier to occur of (i) December 31, 2011, (ii) the death
or  disability of Roth, or (iii) the occurrence of any of the
circumstances described in Section 5 hereof (the “Expiration
Date”).  In the event of death or disability, Roth’s estate
shall receive payment of all unpaid or accrued salary, earned bonuses, and
vesting of equity participation, in accordance with Section 5(C) of this
agreement.

     

    
      
         


      

      
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    5.           Termination. Roth’s term of employment
under this Agreement may be earlier terminated as follows:

    


    (A)           At the
election of the Company for Just Cause.  The Company may,
immediately and unilaterally, terminate Roth’s employment hereunder “for just
cause” at any time during the term of this Agreement upon ten (10) days’
advance written notice to Roth.  Termination of Roth’s employment by
the Company shall constitute a termination “for just cause” under this Section
if such termination is for one or more of the following causes: (i) the
substantial failure of Roth to render services to the Company in accordance with
his assigned duties consistent with this Agreement after a good faith review by
the Board; (ii) misconduct or gross negligence of Roth in connection with the
performance of his assigned duties or breach of the material terms of this
Agreement or the other agreements executed in connection with this Agreement,
the Company or his employment; (iii) incompetence, willful misconduct,
willful violation of any law, rule or regulation or final cease-and-desist order which adversely affects
Roth's ability to perform such obligations, or which materially adversely
affects the business activities, reputation, goodwill or image of the Company;
(iv) dishonesty or breach of fiduciary duty; (v) the commission by
Roth of an act of fraud, embezzlement or deliberate disregard of the rules or
policies of the Company which results in  loss, damage or injury to
the Company or adversely affects the business activities, reputation, goodwill
or image of the Company; (vi) the unauthorized disclosure by Roth of any
trade secret or confidential information of the Company or any of its clients or
customers, which results in material damage or injury to the Company or
adversely affects the business activities, reputation, goodwill or image of the
Company or its clients or customers; (vii) the willful commission by Roth
of an act which constitutes unfair competition with the Company or which induces
any employee or customer of the Company to break a contract with the Company or
(viii) commit an offense involving moral turpitude under Federal, state or local
laws or ordinances that may degrade him in society or bring him into public
hatred, public disrepute, contempt, scorn, or ridicule, or that might shock,
insult or offend the community or public morals or decency or prejudice the
Company.

    


    In the event of any such termination
for “cause” above, Roth shall be entitled to (i) accrued and unpaid salary and
vacation through the termination date, (ii) COBRA benefits for up to the
applicable statutory period, provided Roth makes the appropriate voluntary
contribution payments if required, and subject to applicable law and the
requirements of the Company’s health and insurance plans then in effect, and
(iii) no other severance or other compensation benefits, other than payments
which are required by law to be provided to all discharged
employees.

    


    (B)           Voluntary
Termination. Roth may voluntarily terminate his employment at any time
during the term of this Agreement by providing the Company with ninety (90) days
prior written notice of termination. In the event of any such voluntary
termination by Roth, Roth shall be entitled to (i) accrued and unpaid salary and
vacation through the termination date, (ii) COBRA benefits for the applicable
statutory period, provided Roth makes the appropriate voluntary contribution
payments, and subject to applicable law and the requirements of the Company’s
health and insurance plans then in effect, and (iii) no other severance or other
compensation benefits, other than those dictated by Plan rules and
guidelines.

    


    (C)           At
the Election of the Company for Reasons Other Than Just Cause.  The Company may,
immediately and unilaterally, terminate Roth’s employment hereunder at any time
during the term of this Agreement without
“cause” by giving sixty (60) days’ prior
written notice to Roth of the Company’s election to terminate.  During
such period, Roth will be available on a full-time basis for the benefit of the
Company to assist the Company in matters relating to a transition.  In
the event the Company exercises its right to terminate Roth under this Section,
the Company agrees to pay Roth a severance or termination payment of nine (9)
months’ salary at the then current base rate, earned or accrued bonuses and all
earned or accrued vacation pay.  Such payment shall be payable in a
lump sum within 10 business days from the date of termination or as otherwise
negotiated by the parties. All stock options, warrants, restricted stock and
other equity arrangements vested as of the date of termination, shall remain
with Executive.  In the event of a termination under this
Section 5(C), the Company may, at its option, retain Roth as a consultant
on terms mutually agreed between the Company and Roth. If the payments required
by this Section are not paid when due or within 360 days thereafter, then the
noncompetition and non-solicitation provisions of Sections 1, 2 and 4 of the
Employee Confidential Information and Inventions Assignment Agreement shall
terminate.

     

    
      
         


      

      
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    (D)           Upon a
Change in Control.  If within
six  months following a Change of Control, as hereinafter defined,
Roth’s employment is modified or terminated for no reason  a reason
other than for disability, death or for cause as defined above, the termination
shall be deemed a “Change of Control Termination” and this Article shall
determine Executive’s severance package in addition to provisions described
under Section 5(C) above. In the event the Company exercises its right to
terminate the Roth under this Section, the Company agrees to pay the Roth
through the end of the current term of the agreement and a severance or
termination payment of nine  (9) months' salary at the then current
base rate, earned or accrued bonuses and all earned or accrued vacation
pay.  Bonuses shall be computed at a rate of 100% of the previous
year’s bonus or an amount as negotiated between the parties.  Such
payments shall be payable in a lump sum within 10 business days from the date of
termination or as otherwise negotiated by the parties.  All Roth
health benefits will continue to be paid in full by the Company through the term
of the agreement.   All stock options, warrants, restricted stock
and other equity arrangements vested as of the date of termination, shall remain
with Roth.  In the event of a termination under this
Section 5(D), the Company may, at its option, retain Roth as a consultant
on terms mutually agreed between the Company and Roth. If the payments required
by this Section are not paid when due or within 360 days thereafter, then the
noncompetition and non-solicitation provisions of Sections 1, 2 and 4 of the
Noncompetition, Confidentiality and Inventions Agreement shall
terminate.

    


    “Change
of Control” shall be defined as follows:

    


    
      	
               
      

            	
              (1)

            	
              the
      acquisition by any individual, entity or group not affiliated with the
      majority shareholder of the Company (a "Person") of 50% or more of either
      (i) the then outstanding shares of the Company’s common stock (the
      "Outstanding Common Stock") or (ii) the combined voting power of the then
      outstanding securities of the Company entitled to
  vote;

            


    

    


    
      	
               
      

            	
              (2)

            	
              consummation
      of a merger or sale or other disposition of all or substantially all of
      the assets of the Company not as a result of reorganization or bankruptcy
      under the Federal Bankruptcy Code, or as a result of the Company being
      placed in receivership (a "Corporate
      Transaction").  ;

            


    

    


    6.           Confidential
Information and Inventions Assignment Agreement.  In connection
with his employment by the Company pursuant to the terms of this Agreement, Roth
shall execute the Employee Confidential Information and Inventions Assignment
Agreement attached hereto as Exhibit A, the
terms and conditions of which are incorporated herein by
reference.  This Agreement is an essential part of the subject matter
and is incorporated by reference.

    


    7.           Governing
Law; Injunctive Relief.  This Agreement
shall be governed by and construed in accordance with the internal laws of
California and shall be deemed to be performable in the State of
California.  Roth acknowledges that the breach or threatened breach of
any of the provisions of this Agreement would give rise to irreparable injury to
Company which injury would be inadequately compensable in money
damages.  Accordingly, Company may seek and obtain a restraining order
and/or injunction prohibiting the breach or threatened breach of any provision,
requirement or covenant of this Agreement or the Employee Confidential
Information and Inventions Assignment Agreement executed in connection herewith,
in addition to and not in limitation of any other legal remedies which may be
available.  Roth further acknowledges and agrees that the agreements
set out above are necessary for the protection of Company’s legitimate goodwill
and business interests and are reasonable in scope, duration and
content.

    


    8.           Severability.  In case any one
or more of the provisions contained in this Agreement or the Employee
Confidential Information and Inventions Assignment Agreement for any reason
shall be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement or the Employee Confidential Information and Inventions
Assignment Agreement, and  this Agreement and/or the Employee
Confidential Information and Inventions Assignment Agreement, as the case may
be, shall be construed, revised, modified and reformed to the maximum extent
possible to effect the purposes set forth herein and in the Employee
Confidential Information and Inventions Assignment Agreement.

    


    9.           Waivers
and Modifications.  This Agreement
may be modified, and the rights and remedies of any provision hereof may be
waived, only in accordance with this Section.  No modification or
waiver by the Company shall be effective without the consent of Roth and at
least a majority of the Board (excluding Roth, if Roth is a director) then in
office at the time of such modification or waiver.  No waiver by
either party of any breach by the other party of any provision hereof shall be
deemed to be a waiver of any later or other breach thereof or as a waiver of any
other provision of this Agreement.  This Agreement and the Employee
Confidential Information and Inventions Assignment Agreement set forth all of
the terms of the understandings between the parties with reference to the
subject matter set forth herein and may not be waived, changed, discharged or
terminated orally or by any course of dealing between the parties, but only by
an instrument in writing signed by the party against whom any waiver, change,
discharge or termination is sought.

     

    
      
         


      

      
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    10.           Assignment.  Roth acknowledges
that the services to be rendered by him are unique and personal in
nature.  Accordingly, Roth may not assign any of his rights or
delegate any of his duties or obligations under this Agreement.  The
rights and obligations of the Company under this Agreement shall be freely
assignable and shall inure to the benefit of, and shall be binding upon, the
successors and assigns of the Company, including any successor to the Company’s
capital stock or assets by reason of any sale of stock or assets, merger, sale
or other form of business combination where the Company is not the surviving
entity.

    


    11.           Acknowledgments.  Roth hereby
acknowledges and recognizes that the enforcement of any of the provisions of the
Employee Confidential Information and Inventions Assignment Agreement may
interfere with the Roth’s ability to pursue a livelihood in the same business as
the Company.  Notwithstanding the foregoing, Roth represents that he
is knowledgeable about the business of the Company and further represents that
he is capable of pursuing, and willing to pursue, a career in other industries
to earn a proper livelihood.  In addition the parties acknowledge and
agree that all terms of this Agreement remain in full force and effect,
regardless of whether the contingencies stated in this Agreement are met,
including but not limited to those stated in Paragraph 2, and/or Roth’s
employment is terminated with or without cause, whether during the Term or
thereafter.

    


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    IN WITNESS WHEREOF, the
parties hereto have executed this Employment Agreement as of the date first
above written.

     

    
      
        
          
            
              
                
                  
                    
                      
                        	 
      	 
      	 
      	
                                ROTH:

                              	 
      
	
                                AFH
      Holding II, Inc. (to be renamed First Blush Brands, Inc.)

                              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	
                                /s/ AMIR F. HESHMATPOUR

                              	 
      	
                                By:

                              	
                                /s/ ANTHONY G. ROTH

                              	 
      
	
                                Name:

                              	
                                Amir
      F. Heshmatpour

                              	 
      	
                                Anthony
      G. Roth

                              
	
                                Title:

                              	
                                President

                              	 
      	
                                Executive

                              


                      

                    

                  

                

              

            

          

        

      


      
        
           


        

        
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    Exhibit
A

    EMPLOYEE
CONFIDENTIAL INFORMATION AND INVENTIONS ASSIGNMENT AGREEMENT

     

    In
consideration of my employment or continued employment by AFH Holding II, Inc.,
to be renamed First Blush Brands, Inc. (“Company”), and the
compensation paid to me now and during my employment with the Company, I agree
to the terms of this Agreement as follows:

     

    1.            
Confidential Information Protections.

    
       

      1.1          
Nondisclosure;
Recognition of Company’s Rights.  At all times during and after
my employment, I will hold in confidence and will not disclose, use, lecture
upon, or publish any of Company’s Confidential Information (defined below),
except as may be required in connection with my work for Company, or as
expressly authorized by the Chief Executive Officer (the “CEO”) of Company.  I
will obtain the CEO’s written approval before publishing or submitting for
publication any material (written, oral, or otherwise) that relates to my work
at Company and/or incorporates any Confidential Information.  I hereby
assign to Company any rights I may have or acquire in any and all Confidential
Information and recognize that all Confidential Information shall be the sole
and exclusive property of Company and its assigns.

       

      1.2          
Confidential
Information.  The term “Confidential Information”
shall mean any and all confidential knowledge, data or information related to
Company’s business or its actual or demonstrably anticipated research or
development, including without limitation (a) trade secrets, inventions, ideas,
processes, computer source and object code, data, formulae, programs, other
works of authorship, know-how, improvements, discoveries, developments, designs,
and techniques; (b) information regarding products, services, plans for research
and development, marketing and business plans, budgets, financial statements,
contracts, prices, suppliers, and customers; (c) information regarding the
skills and compensation of Company’s employees, contractors, and any other
service providers of Company; and (d) the existence of any business discussions,
negotiations, or agreements between Company and any third party.

       

      1.3          
Third Party
Information.  I understand that Company has received and in the
future will receive from third parties confidential or proprietary information
(“Third Party
Information”) subject to a duty on Company’s part to maintain the
confidentiality of such information and to use it only for certain limited
purposes.  During and after the term of my employment, I will hold
Third Party Information in strict confidence and will not disclose to anyone
(other than Company personnel who need to know such information in connection
with their work for Company) or use, Third Party Information, except in
connection with my work for Company or unless expressly authorized by an officer
of Company in writing.

       

      1.4          
No Improper Use of
Information of Prior Employers and Others.  I represent that my
employment by Company does not and will not breach any agreement with any former
employer, including any noncompete agreement or any agreement to keep in
confidence or refrain from using information acquired by me prior to my
employment by Company.  I further represent that I have not entered
into, and will not enter into, any agreement, either written or oral, in
conflict with my obligations under this Agreement.  During my
employment by Company, I will not improperly make use of, or disclose, any
information or trade secrets of any former employer or other third party, nor
will I bring onto the premises of Company or use any unpublished documents or
any property belonging to any former employer or other third party, in violation
of any lawful agreements with that former employer or third party.  I
will use in the performance of my duties only information that is generally
known and used by persons with training and experience comparable to my own, is
common knowledge in the industry or otherwise legally in the public domain, or
is otherwise provided or developed by Company.

       

    

    2.            
Inventions.

     

    2.1          
Inventions and
Intellectual Property Rights.  As used in this Agreement, the
term “Invention” or
“Intellectual Property” means any ideas, concepts, information, materials,
processes, data, programs, know-how, improvements, discoveries, developments,
designs, artwork, formulae, other copyrightable works, and techniques and all
Intellectual Property Rights in any of the items listed above.  The
term “Intellectual Property
Rights” means all trade secrets, copyrights, trademarks, mask work
rights, patents and other intellectual property rights recognized by the laws of
any jurisdiction or country.  Any and all Inventions or Intellectual
Property of the Company shall be considered Confidential
Information.

     

    Work for Hire. To the extent
that I create Inventions or Intellectual Property in connection with or as a
result of my employment with the Company, I acknowledge and agree that all
results and proceeds of my services and activities in that regard (including all
original ideas in connection therewith and any physical materials created by me)
are and shall be created within the scope of my employment by Company, or shall
be deemed to have been specially commission for the Company, as the case may be,
and I further acknowledge and agree that said results and proceeds are and shall
be deemed a “work made for hire” within the meaning of the United States
Copyright Law with the Company being deemed the sole author of such work and
owner of all such results and proceeds (including, without limitation, all
copyrights and renewals) for all purposes.  Company entering into this
Agreement with me and compensating me as an employee shall constitute full and
complete consideration for such results and proceeds.  In the event
such results and proceeds are determined not to be a “work-made-for-hire,” then
I hereby irrevocably and exclusively assigns to Company, its successors,
licensees and assigns, in perpetuity, throughout the universe, all rights
(including, without limitation, all copyrights and renewals and extensions
thereof) in and to such results and proceeds of my services. I acknowledge that
Company is and shall be the sole and exclusive owner of all rights of every kind
and nature in and to my original ideas and contributions, if any, created in
connection with my employment with the Company, and Company shall have the right
to use, refrain from using, change, modify, add to or subtract from, and to
exploit, advertise, exhibit, fix, release, distribute and otherwise turn to
account, any or all of the foregoing in any manner and in any and all media,
whether now known or hereafter developed, throughout the universe, in
perpetuity, in any and all languages, as Company in its sole discretion shall
determine.  Furthermore, I hereby expressly waive, in perpetuity,
without limitation, any and all right in law, equity or otherwise, which I may
have or claim to have with respect under any law relating to the “moral rights
of authors” or any similar law throughout the universe or as a result of any
alleged infringement of said “moral rights of authors” or any similar laws and I
agree not to institute any action on the grounds that any changes, deletions,
additions use or otherwise of the Intellectual Property created by me during my
employment with Company has violated the my “moral rights.”

     

    
      
         


      

      
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    Prior Inventions.  I
have disclosed on Exhibit
A a
complete list of all Inventions that (a) I have, or I have caused to be, alone
or jointly with others, conceived, developed, or reduced to practice prior to
the commencement of my employment by Company; (b) in which I have an ownership
interest or which I have a license to use; (c) and that I wish to have excluded
from the scope of this Agreement (collectively referred to as “Prior
Inventions”).  If no Prior Inventions are listed in Exhibit A, I warrant that
there are no Prior Inventions.  I agree that I will not incorporate,
or permit to be incorporated, Prior Inventions in any Company Inventions
(defined below) without Company’s prior written consent. If, in the course of my
employment with Company, I incorporate a Prior Invention into a Company process,
machine or other work, I hereby grant Company a non-exclusive, perpetual,
fully-paid and royalty-free, irrevocable and worldwide license, with rights to
sublicense through multiple levels of sublicensees, to reproduce, make
derivative works of, distribute, publicly perform, and publicly display in any
form or medium, whether now known or later developed, make, have made, use,
sell, import, offer for sale, and exercise any and all present or future rights
in, such Prior Invention.

     

    2.2          
Assignment of Company
Inventions.  Inventions assigned to the Company or to a third
party as directed by the Company pursuant to the section titled “Government or
Third Party” are referred to in this Agreement as “Company
Inventions.”  Subject to the section titled “Government or
Third Party” and except for Inventions that I can prove qualify fully under the
provisions of California Labor Code section 2870 and I have set forth in Exhibit A, I hereby assign and
agree to assign in the future (when any such Inventions or Intellectual Property
Rights are first reduced to practice or first fixed in a tangible medium, as
applicable) to Company all my right, title, and interest in and to any and all
Inventions (and all Intellectual Property Rights with respect thereto) made,
conceived, reduced to practice, or learned by me, either alone or with others,
during the period of my employment by Company.

     

    2.3          
Obligation to Keep Company Informed.  During the period of my
employment and for one (1) year after my employment ends, I will promptly and
fully disclose to Company in writing (a) all Inventions authored, conceived, or
reduced to practice by me, either alone or with others, including any that might
be covered under California Labor Code section 2870, and (b) all patent
applications filed by me or in which I am named as an inventor or
co-inventor.

     

    2.4          
Government or Third
Party.  I agree that, as directed by the Company, I will assign
to a third party, including without limitation the United States, all my right,
title, and interest in and to any particular Company Invention.

     

    2.5          
Enforcement of
Intellectual Property Rights and Assistance.  During and after
the period of my employment, I will assist Company in every proper way to obtain
and enforce United States and foreign Intellectual Property Rights relating to
Company Inventions in all countries.  If the Company is unable to
secure my signature on any document needed in connection with such purposes, I
hereby irrevocably designate and appoint Company and its duly authorized
officers and agents as my agent and attorney in fact, which appointment is
coupled with an interest, to act on my behalf to execute and file any such
documents and to do all other lawfully permitted acts to further such purposes
with the same legal force and effect as if executed by me.

     

    2.6          
Incorporation of
Software Code.  I agree that I will not incorporate into any
Company software or otherwise deliver to Company any software code licensed
under the GNU General Public License or Lesser General Public License or any
other license that, by its terms, requires or conditions the use or distribution
of such code on the disclosure, licensing, or distribution of any source code
owned or licensed by Company.

     

    3.          
Records.  I
agree to keep and maintain adequate and current records (in the form of notes,
sketches, drawings and in any other form that is required by the Company) of all
Inventions made by me during the period of my employment by the Company, which
records shall be available to, and remain the sole property of, the Company at
all times.

     

    4.          
Additional
Activities.  I agree that (a)
during the term of my employment by Company, I will not, without Company’s
express written consent, engage in any employment or business activity that is
competitive with, or would otherwise conflict with my employment by, Company,
and (b) for the period of my employment by Company and for one (l) year
thereafter, I will not, either directly or indirectly, solicit or attempt to
solicit any employee, independent contractor, or consultant of Company to
terminate his, her or its relationship with Company in order to become an
employee, consultant, or independent contractor to or for any other person or
entity.

     

    
      
         


      

      
        8

        
          

        

      

      
         


      

    


    5.          
Return Of
Company Property. Upon termination of my employment or upon Company’s
request at any other time, I will deliver to Company all of Company’s property,
equipment, and documents, together with all copies thereof, and any other
material containing or disclosing any Inventions, Third Party Information or
Confidential Information and certify in writing that I have fully complied with
the foregoing obligation.  I agree that I will not copy, delete, or
alter any information contained upon my Company computer or Company equipment
before I return it to Company.  I agree that if I return my Company
computer or Company equipment to the Company and it contains any non-Company
related information, the Company has no obligation to save, secure or supply me
with copies of such information.  In addition, if I have used any
personal computer, server, or e-mail system to receive, store, review, prepare
or transmit any Company information, including but not limited to,
Confidential Information, I agree to provide the Company with a computer-useable
copy of all such Confidential Information and then permanently delete and
expunge such Confidential Information from those systems; and I agree to
provide the Company access to my system as reasonably requested to verify that
the necessary copying and/or deletion is completed. I further agree that
any property situated on Company’s premises and owned by Company is subject to
inspection by Company’s personnel at any time with or without
notice.  Prior to the termination of my employment or promptly after
termination of my employment, I will cooperate with Company in attending an exit
interview and certify in writing that I have complied with the requirements of
this section.

     

    6.          
Notification
Of New Employer.  If I leave the
employ of Company, I consent to the notification of my new employer of my rights
and obligations under this Agreement, by Company providing a copy of this
Agreement or otherwise.

     

    7.          
General Provisions.

     

    7.1          
Governing Law and
Venue.  This Agreement and any action related thereto will be
governed and interpreted by and under the laws of the State of California,
without giving effect to any conflicts of laws principles that require the
application of the law of a different state. I expressly
consent to personal jurisdiction and venue in the state and federal courts for
the county in which Company’s principal place of business is located for any
lawsuit filed there against me by Company arising from or related to this
Agreement.

     

    7.2          
Severability.  If
any provision of this Agreement is, for any reason, held to be invalid or
unenforceable, the other provisions of this Agreement will remain enforceable
and the invalid or unenforceable provision will be deemed modified so that it is
valid and enforceable to the maximum extent permitted by law.

     

    7.3          
Survival.  This
Agreement shall survive the termination of my employment and the assignment of
this Agreement by Company to any successor or other assignee and be binding upon
my heirs and legal representatives.

     

    7.4          
Employment.  I agree
and understand that nothing in this Agreement shall give me any right to
continued employment by Company, and it will not interfere in any way with my
right or Company’s right to terminate my employment at any time, with or without
cause and with or without advance notice.

     

    7.5          
Notices.  Each party
must deliver all notices or other communications required or permitted under
this Agreement in writing to the other party at the address listed on the
signature page, by courier, by certified or registered mail (postage prepaid and
return receipt requested), or by a nationally-recognized express mail
service.  Notice will be effective upon receipt or refusal of
delivery.  If delivered by certified or registered mail, notice will
be considered to have been given five (5) business days after it was mailed, as
evidenced by the postmark.  If delivered by courier or express mail
service, notice will be considered to have been given on the delivery date
reflected by the courier or express mail service receipt. Each party may change
its address for receipt of notice by giving notice of the change to the other
party.

     

    7.6          
Injunctive
Relief. I acknowledge that, because my services are personal and unique
and because I will have access to the Confidential Information of Company, any
breach of this Agreement by me would cause irreparable injury to Company for
which monetary damages would not be an adequate remedy and, therefore, will
entitle Company to injunctive relief (including specific
performance).  The rights and remedies provided to each party in this
Agreement are cumulative and in addition to any other rights and remedies
available to such party at law or in equity.

     

    7.7          
Waiver. Any
waiver or failure to enforce any provision of this Agreement on one occasion
will not be deemed a waiver of that provision or any other provision on any
other occasion.

     

    7.8          
Export.  I agree not
to export, directly or indirectly, any U.S. technical data acquired from Company
or any products utilizing such data, to countries outside the United States,
because such export could be in violation of the United States export laws or
regulations.

     

    7.9          
Entire
Agreement.  If no other agreement governs nondisclosure and
assignment of inventions during any period in which I was previously employed or
am in the future employed by Company as an independent contractor, the
obligations pursuant to sections of this Agreement titled “Confidential
Information Protections” and “Inventions” shall apply.  This Agreement
is the final, complete and exclusive agreement of the parties with respect to
the subject matter hereof and supersedes and merges all prior communications
between us with respect to such matters.  No modification of or
amendment to this Agreement, or any waiver of any rights under this Agreement,
will be effective unless in writing and signed by me and the CEO of
Company.  Any subsequent change or changes in my duties, salary or
compensation will not affect the validity or scope of this
Agreement.

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

    This
Agreement shall be effective as of the first day of my employment with
Company.

     

    
      
        
          
            
              
                	
                        EMPLOYEE:

                        I
      have read, understand, and Accept
      this

                      	 	
                        COMPANY:

                        Accepted
      and agreed:

                      
	
                        agreement
      and have been given the opportunity

                        to
      Review it with independent legal counsel.

                      	 	
                         

                         

                        _______________________________________________

                      
	
                        
                          _______________________________________________

                        

                      	 	
                        (Signature)

                      
	
                        (Signature)

                      	 	 
      
	 
      	 	
                        By:

                      
	
                        By:

                      	 	
                        
                          _______________________________________________

                        

                      
	
                        
                          _______________________________________________

                        

                      	 	
                         

                      
	 	 	
                        Title:

                      
	
                        Title:

                      	 	
                        
                          _______________________________________________

                        

                      
	
                        
                          _______________________________________________

                        

                      	 	
                         

                      
	 	 	
                        Date:

                      
	
                        Date:

                      	 	
                        
                          
                            _______________________________________________

                          

                        

                      
	
                        
                          _______________________________________________

                        

                      	 	 
      
	 
      	 	
                        Address:

                      
	
                        Address:

                      	 	
                        
                          _______________________________________________

                        

                      
	
                        
                          _______________________________________________

                        

                      	 	 
      


              

            

          

        

      

    


    
      
         


      

      
        10

        
          

        

      

      
         


      

    


    EXHIBIT
A

     

    INVENTIONS

     

    1.           Prior Inventions
Disclosure.  The following is a complete list of all Prior
Inventions (as provided in Section 2.2 of the attached Employee Confidential
Information and Inventions Assignment Agreement, defined herein as the
“Agreement”):

     

                  o        
None

     

                 
o        
See immediately below:

     

     

      
        

      

    

     

    
      

    

     

    2.           Limited
Exclusion Notification.

     

    This is to
notify you in accordance with Section 2872 of the California Labor Code
that the foregoing Agreement between you and Company does not require you to
assign or offer to assign to Company any Invention that you develop entirely on
your own time without using Company’s equipment, supplies, facilities or trade
secret information, except for those Inventions that either:

     

    a.           Relate
at the time of conception or reduction to practice to Company’s business, or
actual or demonstrably anticipated research or development; or

     

    b.           Result
from any work performed by you for Company.

     

    To the
extent a provision in the foregoing Agreement purports to require you to assign
an Invention otherwise excluded from the preceding paragraph, the provision is
against the public policy of this state and is unenforceable.

     

    This
limited exclusion does not apply to any patent or Invention covered by a
contract between Company and the United States or any of its agencies requiring
full title to such patent or Invention to be in the United States.