exv10w2



 





Exhibit 10.2




EMPLOYMENT AGREEMENT



THIS EMPLOYMENT AGREEMENT (the “Agreement”) is entered into by and between Peter Segall (“you”) and
Blackboard Inc. (“Blackboard”) and is effective as of September 1, 2006.




     WHEREAS, Blackboard desires to employ you on the terms and conditions hereinafter set forth
and you desire to accept such employment;



     NOW, THEREFORE, in consideration of the promises and the mutual agreements contained herein,
the parties agree as follows:


1. Responsibilities. Blackboard agrees to employ you as the President of U.S. Higher
Education. You shall report to Blackboard’s CEO and shall be a member of Blackboard’s Senior
Executive Committee. You shall devote your entire business time, attention, skill and energy
exclusively to the business of Blackboard and perform the responsibilities assigned to you in
accordance with the standards and policies that Blackboard may from time to time establish. You
may engage in appropriate civic or charitable activities and devote a reasonable amount of time to
private investments or boards or other activities provided that such activities do not interfere or
conflict with your responsibilities and are not or are not likely to be contrary to Blackboard’s
interests. You and Blackboard agree that your position is essential to Blackboard’s success and
that the highest level of performance is required from you.



2. Term of Employment. Blackboard agrees to employ you, and you agree to remain in
employment with Blackboard, from September 1, 2006 until August 31, 2007 (the “Initial Term”),
unless your employment terminates earlier pursuant to Section 5 below. This Agreement shall
automatically renew for successive one (1) year periods (each, a “Renewal Term” and together with
the Initial Term, the “Term”) unless either party provides prior written notice of its intent not
to renew. You must provide notice of your intent not to renew at least ninety (90) days prior the
first day of the applicable Renewal Term and Blackboard must provide notice of its intent not to
renew at least thirty (30) days’ prior to the first day of the applicable Renewal Term.



3. Compensation.




     (a) Base Compensation. Your annual base compensation shall initially be US$250,000
(“Base Compensation”), less applicable taxes and withholdings, payable in accordance with
Blackboard’s regular payroll practices from time to time in effect. Blackboard’s Board of
Directors (the “Board”) may review and adjust your Base Compensation periodically.



     (b) Bonus Compensation. Your initial target bonus will be up to 50% of your Base
Compensation. The actual amount of the bonus, if any, will be determined by the Board in its sole
discretion. If a bonus is awarded, it will be paid in the year following that for which the bonus
is being awarded. To be eligible to receive an annual bonus for any fiscal year, you must meet
financial performance targets set by the Board and be employed through March 31st of the
following year.


For 2006, you will earn a pro-rated portion of $90,000 corresponding to the period between January
1, 2006 and the date hereof. You will also be eligible to earn a pro rated portion of your 2006
bonus for the time period beginning September 1, 2006 through December 31, 2006, which will be
calculated in the same or similar manner to other executive employees.




     (c) Business Expenses. During the Term, Blackboard shall pay or reimburse you for all
ordinary and reasonable business-related expenses you incur in the performance of your duties under
this Agreement. Blackboard will reimburse you for all such expenses, in accordance with its
policies and procedures, upon the presentation by you of an itemized account of such expenditures,
together with supporting receipts and other appropriate documentation.


4. Employee Benefits.




     (a) In General. During the Term, you shall be eligible for all employee benefits that
Blackboard may provide to employees who are officers of Blackboard, which may include, but are not
limited to benefits such as health insurance plans, a stock option plan, paid holidays and 401(k),
subject in each case to the generally applicable terms and
conditions of any such plan or program in question and to the determinations of any person or
committee administering any such plan or program. Blackboard reserves the right to modify or
terminate any such benefit at any time.



 









 





     (b) Vacation. You shall be eligible to take paid vacation during each calendar year
in accordance with Blackboard’s Employment Handbook.



     (c) Corporate Housing. Blackboard will have the option to either provide you with use
of an apartment in the Washington, DC area, beginning on September 1, 2006 for the Term of this
Agreement or to reimburse you for the reasonable cost of rent for such an apartment.


5. Termination of Employment. Upon the effective date of termination of your employment
with Blackboard (the “Termination Date”), you will not be eligible for further compensation,
benefits or perquisites under Sections 3 and 4 of this Agreement, other than those that have
already accrued or vested as of the Termination Date. Termination of your employment may occur
under any of the following circumstances:




     (a) Expiration of Term. Your employment will terminate if the Term provided for under
Section 2 expires pursuant to the notice requirements of Section 2; or



     (b) Termination of Employment by Blackboard. Blackboard has the right to terminate
your employment at any time with or without Cause. For all purposes under this Agreement,
(“Cause”) shall mean:



          (i) willful failure to observe the material, standard published policies of Blackboard or to
carry out the reasonable and proper directives of the Board, consistent with the Employee’s
position and duties under this Agreement;




          (ii) willful misconduct or gross negligence by the Employee in respect of his obligations to
the Company;




          (iii) a conviction of, or a plea of nolo contendere by, the Employee
of a felony involving moral turpitude;




          (iv) a material violation or breach of the terms of this Agreement; or




          (v) theft of the property of Blackboard or other disloyal or dishonest conduct of the Employee
that materially harms the Company or its business.




     (c) Resignation by You. You have the right to resign your employment with Blackboard
at any time, with or without Good Reason, provided that you may resign with Good Reason only if you
provide notice of such reason for resignation to Blackboard stating that such reason will be
grounds for resignation with Good Reason, and if Blackboard fails to cure such reason within thirty
(30) days following receipt of such notice.



          (i) For purposes of this Agreement, “Good Reason” shall mean (A) a material failure by
Blackboard to perform its obligations under this Agreement; (B) your relocation to more than 50
miles outside of your residence (at the time of your execution of this Agreement) without your
consent; or (C) a material diminution of your compensation, duties or responsibilities.




          (ii) During the Term, you agree to provide Blackboard ninety (90) days’ prior written notice
of your resignation, with or without Good Reason. Blackboard may in its sole discretion place you
on paid administrative leave as of any date prior to the end of such ninety (90) day notice period
and request that you no longer be present on Blackboard premises. During any period of paid
administrative leave, you will not be authorized to act as a representative, or make any statements
on behalf of, Blackboard; or




     (d) Death or Disability. Your employment shall be deemed to have been terminated by
you upon your (i) death or (ii) inability to perform your duties under this Agreement, even with
reasonable accommodation, for more than twenty-six (26) weeks, whether or not consecutive, in any
twelve-month period (“Disability”). Termination will be effective upon the occurrence of such
event.


6. Severance Payments.





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     If (i) Blackboard terminates your employment without Cause (as defined in Section 5(b)) at any
time during the Term, or (ii) you resign for Good Reason and comply with the obligations set forth
in Section 5(c), or (iii) you resign for any reason during the eighteen (18) month period
immediately following your execution of this Agreement and provide ninety (90) days’ notice of such
resignation, then Blackboard will pay you your then current Base Salary, less applicable taxes and
withholdings, for twelve (12) months (“Severance Payments”). If, following the end of a calendar
year but prior to receiving your bonus for the completed calendar year, you are terminated without
Cause or resign for Good Reason, you shall also receive your bonus, less taxes and withholdings,
for the completed calendar year as part of the Severance Payments at such time as the Board deems
appropriate, consistent with the payment of the other executives’ bonuses. The Severance Payments
shall be made consistent with Blackboard’s regular payroll schedule and paid monthly for twelve
(12) months or in a lump sum at Blackboard’s discretion. If you timely apply and qualify for
COBRA, Blackboard will pay your COBRA premiums, at your current level of coverage, for twelve (12)
months, unless you become covered by another employer’s health insurance, in which case the COBRA
coverage will be terminated when your new coverage commences. You agree to notify Blackboard
immediately if you become covered by another employer’s health insurance plan. To receive the
Severance Payments and COBRA premiums you must sign a release of any and all claims in the form
provided by Blackboard. Such Severance Payments and COBRA premiums shall begin at the later of (i)
the first pay period following your Termination Date or (ii) ten (10) days after you deliver the
signed release to Blackboard.


7. Return of Property. Upon termination of your employment with Blackboard for any reason,
you agree to immediately return to Blackboard all equipment, credit cards and other property
belonging to Blackboard. This includes all documents and other information prepared by you or on
your behalf or provided to you in connection with performing your duties for Blackboard, regardless
of the form in which such documents or information are maintained or stored, including computer,
typed, written, imaged, audio, video, micro-fiche, electronic or any other means of recording or
storing documents or other information. You hereby warrant that you will not retain in any form
any such document or other information or copies thereof, except as provided in the following
sentence. You may retain a copy of any documents describing any rights or obligations you may have
after the Termination Date under any employee benefit plan or other agreements.



8. Confidentiality, Non-Solicitation and Non-Competition Agreement.




     (a) Confidential Information. You shall not disclose or use at any time, either
during your employment or after your Termination Date, any confidential information, including, but
not limited to, the terms of this Agreement, existing and prospective investments, trade secrets or
proprietary information, strategic sourcing information or analysis, financing information and
sources, patents, patent applications, developmental or experimental work, formulas, test data,
prototypes, models, know how and product specifications, financial information, financial
projections and pro forma financial information, sales and marketing strategies, plans and programs
and product development information, employees’ and consultants’ benefits, perquisites, salaries,
stock options, compensation, formulas or bonuses, and their non-business addresses and telephone
numbers, organizational structure and reporting relationships, business plans, names, addresses,
phone numbers of customers, contracts, including contracts with clients, suppliers, independent
contractors or employees, business plans and forecasts, and existing and prospective projects or
business opportunities (“Confidential Information”) of Blackboard, whether patentable or not, which
you learn as a result of your employment with Blackboard, whether or not you developed such
information. “Confidential Information” shall not include, without limitation, information that is
or later becomes publicly available in a manner wholly unrelated to any breach of this Agreement by
you as of the date it enters the public domain or information that is already in your possession
prior to your receipt of it from the Company and which is not the subject of an obligation of
confidence of any kind.


If you are uncertain whether something is Confidential Information you should treat it as
Confidential Information until you receive clarification from Blackboard that it is not
Confidential Information. Confidential Information shall remain at all times the property of
Blackboard. You may use or disclose Confidential Information only as authorized and necessary in
performing your responsibilities under this Agreement during your employment with Blackboard; with
the General Counsel’s prior written consent; in a legal proceeding between you and Blackboard to
establish the rights of either party under this Agreement, provided that you stipulate to a
protective order to prevent any unnecessary use or
disclosure; or subject to a compulsory legal process that requires disclosure of such information,
provided that you have complied with the following procedures to ensure that Blackboard has an
adequate opportunity to protect its legal




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interests in preventing disclosure. Upon receipt of a
subpoena that could possibly require disclosure of Confidential Information, you shall provide a
copy of the compulsory process and complete information regarding the circumstances under which you
received it to Blackboard by hand delivery within twenty-four (24) hours. You will not make any
disclosure until the latest possible date for making such disclosure in accordance with the
compulsory process (“Latest Possible Date”). If Blackboard seeks to prevent disclosure in
accordance with the applicable legal procedures, and provides you with notice before the Latest
Possible Date that it has initiated such procedures, you will not make disclosures of any
Confidential Information that is the subject of such procedures, until such objections are
withdrawn or ruled on. You hereby acknowledge that any breach of this Section 8(a) would cause
Blackboard irreparable harm.




     (b) Outside Activities. You shall submit to Blackboard’s General Counsel, within a
reasonable time prior to dissemination, the text of any speech, professional paper, article or
similar communication created by you which relates to Blackboard’s present or future business or
research and development endeavors. The General Counsel then will notify you if the dissemination
of the communication is permitted under the terms of this Agreement.



     (c) Ownership of Confidential Information; Return of Materials. All Confidential
Information, including without limitation that which is produced by or for Blackboard by you or
anyone else, all materials embodying Confidential Information, and all copies thereof, will remain
the property of Blackboard or of the third party who has furnished it to Blackboard. On your
Termination Date, or at the written request of Blackboard at any time, you will immediately deliver
to Blackboard all materials, and copies thereof, which are in your possession or control and which
contain or are related in any way to any Confidential Information. This includes all documents and
other information prepared by you or on your behalf or provided to you in connection with your
duties while employed by Blackboard, regardless of the form in which such document or information
are maintained or stored, including computer, typed, written, imaged, audio, video, micro-fiche,
electronic or any other means of recording or storing documents or other information. You hereby
warrant that you will not retain in any form any such document or other information or copies
thereof. You may retain a copy of this Agreement and any other document or information describing
any rights you may have after the termination of your employment.



     (d) Intellectual Property.



          (i) For purposes of this Agreement the following terms will be defined as indicated:




               (A) “Inventions” shall mean inventions, ideas, formula, developments, designs, systems,
software, discoveries, and improvements to existing technology, whether or not patentable.



               (B) “Improvements” shall mean all inventions, developments, modifications, changes, whether or
not patentable, made to any Inventions and/or Confidential Information.



               (C) “Copyrighted Work” shall mean any work of authorship eligible for copyright protection
under the federal and state laws of the United States and foreign countries.



               (D) “Copyrights” shall mean any and all rights granted in Copyrighted Works under the laws of
the United States and foreign countries.



          (ii) Exclusions. An Invention, Copyright or Copyrighted Work will not be subject to
this Agreement when all the following criteria are met: (A) no equipment, supplies, facilities, or
Confidential Information of Blackboard was used in developing the Invention or Copyrighted Work or
in applying for or obtaining a patent or Copyright; (B) the Invention or Copyrighted Work was
developed entirely on your own time; (C) the Invention or Copyrighted Work does not relate directly
to the business of Blackboard or to Blackboard’s actual or demonstrably anticipated research or
development; and (D) the Invention, Copyright or Copyrighted Work does not result from any work
performed by you for Blackboard or at the request of Blackboard.




          (iii) Ownership and Assignment of Rights.




               (A) All Inventions, Improvements, or Confidential Information that you have or will conceive
or develop, either alone or with others, shall be the exclusive property of Blackboard. You hereby
assign, and agree to assign, to Blackboard your entire right, title, and interest in and to (I) any
and all such Improvements and



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Inventions, (II) any and all applications for patent, domestic and
foreign that may be filed on said Improvements and Inventions, and (III) any and all patents that
may issue or be granted on such applications, except those excluded under Section 8(d)(ii) of this
Agreement. Both during your employment and after your Termination Date you will on request
immediately sign and deliver to Blackboard without further consideration any and all documents
necessary to perfect the assignments granted in this Section.




               (B) You understand and agree that all Copyrighted Works conceived, developed, created or
contributed to by you shall be considered works made for hire under the copyright laws of the
United States and shall be the exclusive property of Blackboard. Blackboard shall be considered
the author of such Copyrighted Works. You further understand and agree that in the event any
Copyrighted Work created by you within the scope of, or in connection with, your work with
Blackboard, or at the request of Blackboard, fails to meet the legal requirements of a work made
for hire owned by Blackboard, then this Agreement shall operate to assign to Blackboard all of your
rights, title, and interest, including copyrights, in, to and under such Copyrighted Works.
Blackboard shall have sole and absolute discretion to register, enforce, and/or assign Copyrights
for such Copyrighted Works.



          (iv) Assistance and Designation of Agent.




               (A) Both during your employment and after your Termination Date, you will on request
immediately sign and deliver to Blackboard without further consideration, all instruments in
writing requiring your signature and deemed by Blackboard to be necessary or advisable in, or in
connection with, filing or prosecuting of any application for any patent covering Improvements,
Inventions or any divisional, continuing, renewal or reissue application or reexamination request
based upon any application for patent. In the event that Blackboard is unable for any reason
whatsoever to secure your signature to any lawful and necessary documents required to apply for or
execute any patent application with respect to such idea, process, development, design, system,
program, discovery, invention, improvement or writing (including renewals, extensions,
continuations, divisions or continuations in part thereof), you hereby irrevocably designate and
appoint Blackboard and its officers and agents, as your agents and attorneys-in-fact to act for and
on your behalf and instead of you, to execute and file any such application and to do all other
lawfully permitted acts to further the prosecution and issuance of patents thereon with the same
legal force and effect as if executed by you.



               (B) You will aid Blackboard promptly on request, and without further consideration, in any
matter pertaining to or relating to the protection of any of the Improvements, Inventions,
applications for patents covering Inventions or Improvements, and/or Copyrighted Works. If such
request is made after your employment has ended, Blackboard will reimburse you for any expenses
incurred and compensate for any services rendered in complying with such request at the same rate
at which you were compensated during the final month of your employment.


9. Non-Solicitation/Non-Competition.



During your employment and for two (2) years following your Termination Date (the “Restricted
Period”) you will not, except with prior written approval of Blackboard’s General Counsel, directly
or indirectly, individually or as part of or on behalf of any other person, company, employer or
other entity: (a) hire or attempt to solicit for hire, or encourage to end their relationship with
Blackboard, any persons who have been employed by Blackboard at any time within the previous six
(6) months (a “Covered Employee”); (b) sell or otherwise provide, or solicit for the purposes of
selling or otherwise providing, services or products that are similar or related to those sold by
Blackboard as of the Termination Date to any person or entity that has within the twelve (12)
months preceding the Termination Date purchased any such services or products from Blackboard and
with whom you had direct contact on behalf of Blackboard during that time; or (c) own, manage,
operate, control, be employed by, participate in, work in, advise, consult or contract with, or
support in any manner (other than as the holder of not more than one percent (1%) of the total
outstanding stock of a publicly held company) any business that is similar to the type of business
conducted by Blackboard as of the Termination Date within the geographical area in which, as of the
Termination Date, Blackboard is actively marketing or has made a significant investment in time and
money to prepare to market its products or services within the six (6) month period after the
Termination Date. You agree that these provisions are necessary to protect Blackboard’s
legitimate business interests. You warrant that the provisions will not unreasonably interfere in
your ability to earn a living or to pursue your occupation after the Termination Date. You agree to
notify any person or entity to which you provide services during the Restricted Period of your
obligations under this Section 9.




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10. Non-Disparagement. You agree to refrain from making any derogatory or defamatory
remarks or comments that may disparage Blackboard, or any officer, employee or agent of Blackboard
during your employment or after your Termination Date.



11. Other Obligations. You warrant that you are not subject to any other obligations
that would conflict with or inhibit your ability to perform your duties under this Agreement. You
represent that you have disclosed to Blackboard the existence and contents of all covenants not to
compete that you have entered into with any other entity. You further warrant that you have not
and will not bring to Blackboard or use in the performance of your responsibilities at Blackboard
any equipment, supplies, facility or trade secret information (that is not generally available to
the public) of any current or former employer or organization other than Blackboard to which you
provided services, unless you have obtained written authorization for their possession and use.



12. Miscellaneous Provisions.




     (a) Notices. Unless otherwise provided herein, any notice or other communication
required to be given under the terms of this Agreement must be in writing and must be personally
delivered (i.e., left with an individual 18 years of age or older) or sent by overnight delivery.
Documents sent by overnight delivery will be presumed received on the next business day following
the day sent.



	 	 	 
	If notice is to be sent to Blackboard, it will be sent to:

	 	If notice is to be sent to you, it will be sent to:
	 
	 	 
	Matthew Small, Esq.
	 	 
	Blackboard Inc.
	 	 
	1899 L Street, N.W., 5th Floor
	 	 
	Washington DC 20036
	 	 
	 
	 	 
	With a copy to:
	 	 
	 
	 	 
	Douglas B. Mishkin, Esq.
	 	 
	Patton Boggs, LLP
	 	 
	2550 M Street, NW
	 	 
	Washington, DC 20037
	 	 






     (b) Dispute Resolution. You and Blackboard agree that any dispute between you and
Blackboard will be finally resolved by binding arbitration in accordance with the Federal
Arbitration Act (“FAA”). You and Blackboard agree to follow the Dispute Resolution Procedures set
forth in Attachment A to this Agreement.



     (c) Nature of Agreement. This Agreement and the attachment hereto constitute the
entire agreement between you and Blackboard and supersede all prior agreements and understandings
between you and Blackboard relating to the matters covered by this Agreement, including your prior
Employment Agreement dated October 31, 2002, as amended, which is hereby terminated in all
respects. Any long-term equity incentives between Blackboard and you shall be contained in a
separate agreement. In making this Agreement, the parties warrant that they did not rely on any
representations or statements other than those contained in this Agreement. No modification of or
amendment to this Agreement will be effective unless in writing and signed by the General Counsel
or Senior Vice President for Human Resources of Blackboard. A delay or failure by either party to
exercise any right that is the subject of this Agreement will not be construed as a waiver of that
right. A waiver of a breach on any one occasion will not be construed as a waiver of any other
breach. Regardless of the choice of law or conflict of law provisions of the District of Columbia
or any other jurisdiction, the parties agree that this Agreement shall be otherwise interpreted,
enforced and governed by the laws of the District of Columbia. This Agreement will continue in
effect until all obligations under it are fulfilled. If any part of this Agreement is held by a
court of competent jurisdiction to be void or unenforceable, the remaining provisions shall
continue with full force and effect. This Agreement is not assignable by you. This Agreement is
binding on you with respect to Blackboard, its successors or assigns. This Agreement may be
executed in
any number of counterparts each of which shall be an original, but all of which together shall
constitute one instrument. The headings in this Agreement are for convenience only and shall not
effect the interpretation of this Agreement. You further certify that you fully understand the
terms of this Agreement and have entered into it knowingly and voluntarily.



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     IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of
Blackboard by its authorized officer, as of the day and year set forth under their signatures
below.



	 	 	 	 	 
	 	 	Blackboard Inc.
	 
	 	 	 	 
	/s/ Peter Segall

	 	By:
	 	/s/ Michael Chasen
	 	 	 	 	 
	Peter Segall

	 	 	 	Michael Chasen, CEO and President
	 
	 	 	 	 
	Date: September 1, 2006

	 	 	 	Date: September 1, 2006






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Attachment A




DISPUTE RESOLUTION PROCEDURES



The parties agree to make a good faith effort to informally resolve any dispute before submitting
the dispute to arbitration in accordance with the following procedures:





	A.	 	The party claiming to be aggrieved shall furnish to the other a written statement of the
grievance, all persons whose testimony would support the grievance, and the relief requested
or proposed. The written statements must be delivered to the other party within the time
limits for bringing an administrative or court action based on that claim.
	 
	B.	 	If the other party does not agree to furnish the relief requested or proposed, or otherwise
does not satisfy the demand of the party claiming to be aggrieved within thirty (30) days and
the aggrieved party wishes to pursue the issue, the aggrieved party shall by written notice
demand that the dispute be submitted to non-binding mediation before a mediator jointly
selected by the parties.
	 
	C.	 	If mediation does not produce a resolution of the dispute and either party wishes to pursue
the issue, that party shall request arbitration of the dispute by giving written notice to the
other party within thirty (30) days after mediation. The parties will attempt to agree on a
mutually acceptable arbitrator and, if no agreement is reached, the parties will follow the
procedures established by the JAMS Employment Arbitration Rules and Procedures (“Rules”),
which may be found at www.jamsadr.com/rules/employment_arbitration_Rules.asp. The arbitration
will be conducted consistent with JAMS/Endispute’s rules governing employment disputes
(“Rules”) that are in effect at the time of the arbitration. If there is any conflict between
those Rules and the terms of the Employment Agreement (“Agreement”), including all attachments
thereto, the Agreement will govern. The arbitrator shall have the authority to decide whether
the conduct complained of under Subsection A above violates the legal rights of the parties.
In any such arbitration proceeding, any hearing must be transcribed by a certified court
reporter and any decision must be supported by written findings of fact and conclusions of
law. The arbitrator’s findings of fact must be supported by substantial evidence on the
record as a whole and the conclusions of law and any remedy must be provided for by and
consistent with the laws of District of Columbia and federal law. The arbitrator shall have
no authority to add to, modify, change or disregard any lawful term of the Agreement.
Blackboard will pay the arbitrator’s fee. Each party will bear its own attorneys’ fees and
costs, unless the arbitrator orders the award of attorneys’ fees and costs. The arbitrator’s
decision will be final and binding on Blackboard and you and may be recorded as a judgment in
a court of competent jurisdiction.
	 
	D.	 	Arbitration shall be the exclusive means for final resolution of any dispute between the
parties, except (1) for workers’ compensation and unemployment claims and (2) when injunctive
relief is necessary to preserve the status quo or to prevent irreparable injury, including,
without limitation, any claims concerning an alleged or threatened breach of your obligations
regarding confidentiality, non-solicitation and non-competition. Injunctive relief may be
sought from any court of competent jurisdiction located in the District of Columbia.